msmm 


^^toot 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE    CONTINENTAL 
LEGAL    HISTORY    SERIES 

Volume  Eleven 


THE   PROGRESS  OF  CONTINENTAL  LAW 
IN  THE   NINETEENTH  CENTURY 


The  Continental  Legal  History  Series 

Published  under  the  auspices  of  the 

Association  of  American  Law  Schools 


I.  A  GENERAL  SURVEY  OF  EVENTS,  SOURCES,  PERSONS, 
AND  MOVEMENTS  IN  CONTINENTAL  LEGAL  HISTORY. 
By  Various  Authors.  Translated  by  Rapelje  Howell,  F.  S. 
Philbrick,  John  Walgren,  and  John  H.  Wigmore.    $6.00  net. 

II.  GREAT  JURISTS  OF  THE  WORLD,  FROM  PAPINIAN  TO 
VONIHERING.  By  Various  Authors.  Illustrated.  (Extra  vol- 
ume.   By  arrangement  with  John  Murray,  London.)     $5.00  net. 

III.  HISTORY  OF  FRENCH  PRIVATE  LAW.  By  J.  Brissaud,  late 
of  the  University  of  Toulouse.  Translated  by  Rapelje  Howell,  of 
the  New  York  Bar.    $5.00  net. 

IV.  HISTORY  OF  GERMANIC  PRIVATE  LAW.  By  Rudolph 
Huebner,  of  the  University  of  Giessen.  Translated  by  Francis 
S.  Philbrick,  of  the  University  of  California.    $4.50  net. 

V.  HISTORY  OF  CONTINENTAL  CRIMINAL  PROCEDURE. 
By  A.  Esmein,  late  of  the  University  of  Paris,  with  chapters  by 
Francois  Garraud,  of  the  University  of  Lyon,  and  C.  J.  A.  Mitter- 
maier,  late  of  the  University  of  Heidelberg.  Translated  by  John 
Simpson,  of  the  New  York  Bar.    $4.50  net. 

VI.  HISTORY  OF  CONTINENTAL  CRIMINAL  LAW.  By  Ludwig 
von  Bar,  late  of  the  University  of  Gottingen.  Translated  by 
Thomas  S.  Bell,  of  the  Los  Angeles  Bar.     $4.00  net. 

VII.  HISTORY  OF  CONTINENTAL  CIVIL  PROCEDURE.  By 
Arthur  Engelmann,  Chief  Justice  of  the  Court  of  Appeals  at  Bres- 
lau,  with  a  chapter  by  E.  Glasson,  late  of  the  University  of  Paris. 
Translated  by  Robert  W.  Millar,  of  Northwestern  Universit3r. 
$4.00  net. 

VIII.  HISTORY  OF  ITALIAN  LAW.  By  Carlo  Calisse,  of  the  Italian 
Council  of  State.  Translated  by  John  Lisle,  late  of  the  Philadel- 
phia Bar.    $5.00  net. 

IX.  HISTORY  OF  FRENCH  PUBLIC  LAW.  By  J.  Brissaud,  late  of 
the  University  of  Toulouse.  Translated  by  James  W.  Garner,  of 
the  University  of  Illinois.     $4.50  net. 

X.  HISTORY  OF  CONTINENTAL  COMMERCIAL  LAW.  By  Paul 
Huvelin,  of  the  University  of  Lyon.  Translated  by  Ernest  G. 
Lorenzen,  of  Yale  University.    $5.50  net. 

XL  THE  PROGRESS  OF  CONTINENTAL  LAW  IN  THE  19TH 
CENTUK  V.  By  A.  A  i.vakkz,  L.  Duguit,  J.  Chakmont,  E.  Ripert, 
and  others.  Translated  by  L.  B.  Register,  of  the  University  of 
Pennsylvania.    $5.00  net. 


THE  CONTINENTAL  LEGAL  HISTORY  SERIES 

Published  under  the  auspices  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


THE 
PROGRESS  OF  CONTINENTAL  LAW 

IN   THE 

NINETEENTH  CENTURY 


BY 
VARIOUS  AUTHORS 


BOSTON 

LITTLE,   BROWN,   AND   COMPANY 

1918 


K 


Copyright,  1918, 
By  Little,  Brown,  and  Company. 


All  rights  reserved 


Nortoooti  yrrss 

Set  up  and  electrotyped  by  J.  S.  Cushing  Co.,  Norwood,  Mass.,  U.S.A. 

Prcsswork  by  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.S.A. 


LIST   OF   COLLABORATORS 


PREFACE  AND  INTRODUCTIONS 

John  Henry  Wigmore 
Edwin  M.  Borchard  . 
Sir  Frederick  Pollock,  Bart.  . 


Chicago,  Illinois 

New  Haven,  Connecticut 

London,  England 


Alexander  Alvarez 
Leon  Duguit 
Joseph  Charmont 


Alexander  Alvarez 
Ivan  Perich 
Eugene  Gaudemet 
Icilio  Vanni 
Alfred  Rocco 


Georg  Cohn 
Georges  Ripert  . 
Paul  Samuel  Reinscii 
Friedrich  Meili 
Simeon  Eben  Baldwin 
Edmond  Picard    . 
Ottfried  Nippold 
John  Henry  Wigmore 


TEXT 

PART  I 

.     Santiago,  Chile 
.     Bordeaux,  France 
.     Montpellier,  France 

PART  II 

Santiago,  Chile 
Belgrade,  Serbia 
Dijon,  France 
Rome,  Italy 
Macerata,  Italy 

PART  III 

Zurich,  Switzerland 
Marseilles,  France 
Madison,  Wisconsin 
Zurich,  Switzerland 
New  Haven,  Connecticut 
Brussels,  Belgium 
Bern,  Switzerland 
Chicago,  Illinois 


TRANSLATORS 
Layton  Bartol  Register  .         .     Philadelphia,  Pennsylvania 

Ernest  Bruncken        ....     Washington,  District  of  Columbia 

v 


EDITORIAL  COMMITTEE 

OF  THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 

Joseph  H.  Drake,  Professor  of  Law  in  the  University  of 
Michigan. 

Ernst  Freund,  Professor  of  Law  in  the  University  of  Chicago. 

Ernest  G.  Lorenzen,  Professor  of  Law  in  Yale  University. 

Wm.  E.  Mikell,  Professor  of  Law  in  the  University  of  Penn- 
sylvania. 

John  H.  Wigmore,  Chairman,  Professor  of  Law  in  Northwestern 
University. 


LIST  OF  TRANSLATORS 

Thomas  S.  Bell,  of  the  Los  Angeles  Bar. 

James  W.  Garner,  Professor  of  Political  Science  in  the  Univer- 
sity of  Illinois. 

Rapelje  Howell,  of  the  New  York  Bar. 

John  Lisle,  late  of  the  Philadelphia  Bar. 

Ernest  G.  Lorenzen,  of  the  Editorial  Committee. 

Robert  W.  Millar,  Professor  of  Law  in  Northwestern  Uni- 
versity. 

Francis  S.  Philbrick,  Professor  of  Law  in  the  University  of 
California. 

Latton  B.  Register,  Lecturer  on  Law  in  the  University  of 
Pennsylvania. 

John  Simpson,  of  New  York. 

John  Walgren,  of  the  Chicago  Bar. 

John  H.  Wigmore,  of  the  Editorial  Committee. 


I  might  instance  in  other  professions  the  obligation  men  lie  under  of 
applying  themselves  to  certain  parts  of  History;  and  I  can  hardly  for- 
bear doing  it  in  that  of  the  Law,  —  in  its  nature  the  noblest  and  most 
beneficial  to  mankind,  in  its  abuse  and  debasement  the  most  sordid  and 
the  most  pernicious.  A  lawyer  now  is  nothing  more  (I  speak  of  ninety- 
nine  in  a  hundred  at  least),  to  use  some  of  Tully's  words,  "nisi  leguleius 
quidem  cautus,  et  acutus  praeco  actionum,  cantor  formularum,  auceps 
syllabarum."  But  there  have  been  lawyers  that  were  orators,  philoso- 
phers, historians:  there  have  been  Bacons  and  Clarendons.  There  will 
be  none  such  any  more,  till  in  some  better  age  true  ambition,  or  the  love 
of  fame,  prevails  over  avarice;  and  till  men  find  leisure  and  encourage- 
ment to  prepare  themselves  for  the  exercise  of  this  profession,  by  climb- 
ing up  to  the  vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  grovelling  all  their  lives  below,  in  a  mean  but  gainful  applica- 
tion of  all  the  little  arts  of  chicane.  Till  this  happen,  the  profession  of  the 
law  will  scarce  deserve  to  be  ranked  among  the  learned  professions.  And 
whenever  it  happens,  one  of  the  vantage  grounds  to  which  men  must 
climb,  is  Metaphysical,  and  the  other,  Historical  Knowledge.  Henry 
St.  John,  Viscount  Bolingbroke,  Letters  on  the  Study  of  History  (1739). 

Whoever  brings  a  fruitful  idea  to  any  branch  of  knowledge,  or  rends 
the  veil  that  seems  to  sever  one  portion  from  another,  his  name  is  written 
in  the  Book  among  the  builders  of  the  Temple.  For  an  English  lawyer 
it  is  hardly  too  much  to  say  that  the  methods  which  Oxford  invited  Sir 
Henry  Maine  to  demonstrate,  in  this  chair  of  Historical  and  Comparative 
Jurisprudence,  have  revolutionised  our  legal  history  and  largely  trans- 
formed our  current  text-books. — Sir  Frederick  Pollock,  Bart.,  The 
History  of  Comparative  Jurisprudence  (Farewell  Lecture  at  the  Univer- 
sity of*  Oxford,  1903). 

No  piece  of  History  is  true  when  set  apart  to  itself,  divorced  and  iso- 
lated. It  is  part  of  an  intricately  pieced  whole,  and  must  needs  be  put 
in  its  place  in  the  netted  scheme  of  events,  to  receive  its  true  color  and 
estimation.  We  are  all  partners  in  a  common  undertaking,  —  the  illumi- 
nation of  the  thoughts  and  actions  of  men  as  associated  in  society,  the 
life  of  the  human  spirit  in  this  familiar  theatre  of  cooperative  effort  in 
which  we  play,  so  changed  from  age  to  age,  and  yet  so  much  the  same 
throughout  the  hurrying  centuries.  The  day  for  synthesis  has  come.  No 
one  of  us  can  safely  go  forward  without  it.  —  Woodrow  Wilson,  The 
Variety  and  Unity  of  History  (Address  at  the  World's  Congress  of  Arts 
and  Science,  St.  Louis,  1904). 

A  lawyer  without  history  or  literature  is  a  mechanic,  a  mere  working 
mason;  if  he  possesses  some  knowledge  of  these,  he  may  venture  to  call  him- 
self an  architect. — Sir  Walter  Scott,  "Guy  Mannering,"  c.  XXXVII. 


CONTINENTAL  LEGAL  HISTORY  SERIES 
GENERAL   INTRODUCTION   TO   THE    SERIES 

"All  history,"  said  the  lamented  master  Maitland,  in  a  memo- 
rable epigram,  "  is  but  a  seamless  web ;  and  he  who  endeavors  to 
tell  but  a  piece  of  it  must  feel  that  his  first  sentence  tears  the 
fabric." 

This  seamless  web  of  our  own  legal  history  unites  us  inseparably 
to  the  history  of  Western  and  Southern  Europe.  Our  main  interest 
must  naturally  center  on  deciphering  the  pattern  which  lies 
directly  before  us,  —  that  of  the  Anglo-American  law.  But  in 
tracing  the  warp  and  woof  of  its  structure  we  are  brought  inevi- 
tably into  a  larger  field  of  vision.  The  story  of  Western  Continental 
Law  is  made  up,  in  the  last  analysis,  of  two  great  movements, 
racial  and  intellectual.  One  is  the  Germanic  migrations,  planting 
a  solid  growth  of  Germanic  custom  everywhere,  from  Danzig 
to  Sicily,  from  London  to  Vienna.  The  other  is  the  posthumous 
power  of  Roman  law,  forever  resisting,  struggling,  and  coalescing 
with  the  other.  A  thousand  detailed  combinations,  of  varied 
types,  are  developed,  and  a  dozen  distinct  systems  now  survive 
in  independence.  But  the  result  is  that  no  one  of  them  can  be 
fully  understood  without  surveying  and  tracing  the  whole. 

Even  insular  England  cannot  escape  from  the  web.  For,  in 
the  first  place,  all  its  racial  threads  —  Saxons,  Danes,  Normans  — 
were  but  extensions  of  the  same  Germanic  warp  and  woof  that 
was  making  the  law  in  France,  Germany,  Scandinavia,  Nether- 
lands, Austria,  Switzerland,  Northern  Italy,  and  Spain.  And, 
in  the  next  place,  its  legal  culture  was  never  without  some  of  the 
same  intellectual  influence  of  Roman  law  which  was  so  thoroughly 
overspreading  the  Continental  peoples.  There  is  thus,  on  the 
one  hand,  scarcely  a  doctrine  or  rule  in  our  own  system  which  can- 
not be  definitely  and  profitably  traced  back,  in  comparison,  till 
we  come  to  the  point  of  divergence,  where  we  once  shared  it  in 
common  with  them.  And,  on  the  other  hand,  there  is,  during  all 
the  intervening  centuries,  a  more  or  less  constant  juristic  socia- 
bility (if  it  may  be  so  called)  between  Anglo-American  and  Con- 

xi 


CONTINENTAL    LEGAL   HISTORY    SERIES 

tinental  Law;  and  its  reciprocal  influences  make  the  story  one 
and  inseparable.  In  short,  there  is  a  tangled  common  ancestry, 
racial  or  intellectual,  for  the  law  of  all  Western  Europe  and  ourselves. 

For  the  sake  of  legal  science,  this  story  should  now  become  a 
familiar  one  to  all  who  are  studious  to  know  the  history  of  our 
own  law.  The  time  is  ripe.  During  the  last  thirty  years  Euro- 
pean scholars  have  placed  the  history  of  their  law  on  the  footing 
of  modern  critical  and  philosophical  research.  And  to-day,  among 
ourselves,  we  find  a  marked  widening  of  view  and  a  vigorous 
interest  in  the  comparison  of  other  peoples'  legal  institutions. 
To  the  satisfying  of  that  interest  in  the  present  field,  the  only 
obstacle  is  the  lack  of  adequate  materials  in  the  English  language. 

That  the  spirit  of  the  times  encourages  and  demands  the  study 
of  Continental  Legal  History  and  all  useful  aids  to  it  was  pointed 
out  in  a  memorial  presented  at  the  annual  meeting  of  the  Asso- 
ciation of  American  Law  Schools  in  August,  1909: 

"The  recent  spread  of  interest  in  Comparative  Law  in  general  is 
notable.  The  Comparative  Law  Bureau  of  the  American  Bar  Associa- 
tion; the  Pan-American  Scientific  Congress;  the  American  Institute 
of  Criminal  Law  and  Criminology;  the  Civic  Federation  Conference 
on  Uniform  Legislation;  the  International  Congress  of  History;  the 
libraries'  accessions  in  foreign  law,  —  the  work  of  these  and  other 
movements  touches  at  various  points  the  bodies  of  Continental  law. 
Such  activities  serve  to  remind  us  constantly  that  we  have  in  English 
no  histories  of  Continental  law.  To  pay  any  attention  at  all  to  Con- 
tinental law  means  that  its  history  must  be  more  or  less  considered. 
Each  of  these  countries  has  its  own  legal  system  and  its  own  legal 
history.  Yet  the  law  of  the  Continent  was  never  so  foreign  to  Eng- 
lish as  the  English  law  was  foreign  to  Continental  jurisprudence. 
It  is  merely  maintaining  the  best  traditions  of  our  own  legal  litera- 
ture if  we  plead  for  a  continued  study  of  Continental  legal  history. 

"  We  believe  that  a  better  acquaintance  with  the  results  of  modern 
scholarship  in  that  field  will  bring  out  new  points  of  contact  and 
throw  new  light  upon  the  development  of  our  own  law.  Moreover, 
the  present-day  movements  for  codification,  and  for  the  reconstruc- 
tion of  many  departments  of  the  law,  make  it  highly  desirable  that 
our  profession  should  be  well  informed  as  to  the  history  of  the  nine- 
teenth century  on  the  Continent  in  its  great  measures  of  law  reform 
and  codification. 

"  For  these  reasons  we  believe  that  the  thoughtful  American  lawyers 
and  students  should  have  at  their  disposal  translations  of  some  of 
the  best  works  in  Continental  legal  history." 

And  the  following  resolution  was  then  adopted  unanimously  by 
the  Association : 

xii 


CONTINENTAL   LEGAL   HISTORY   SERIES 

"  That  a  committee  of  five  be  appointed,  on  Translations  of  Conti- 
nental Legal  History,  with  authority  to  arrange  for  the  translation 
and  publication  of  suitable  works." 

The  Editorial  Committee,  then  appointed,  spent  two  years  in 
studying  the  field,  making  selections,  and  arranging  for  trans- 
lations. It  resolved  to  treat  the  undertaking  as  a  whole;  and  to 
co-ordinate  the  series  as  to  (1)  periods,  (2)  countries,  and  (3) 
topics,  so  as  to  give  the  most  adequate  survey  within  the  space- 
limits  available. 

(1)  As  to  periods,  the  Committee  resolved  to  include  modern 
times,  as  well  as  early  and  mediaeval  periods;  for  in  usefulness 
and  importance  they  were  not  less  imperative  in  their  claim  upon 
our  attention.  Each  volume,  then,  was  not  to  be  merely  a  valu- 
able torso,  lacking  important  epochs  of  development;  but  was 
to  exhibit  the  history  from  early  to  modern  times. 

(2)  As  to  countries,  the  Committee  fixed  upon  France,  Ger- 
many, and  Italy  as  the  central  fields,  leaving  the  history  in  other 
countries  to  be  touched  so  far  as  might  be  incidentally  possible. 
Spain  would  have  been  included  as  a  fourth;  but  no  suitable  book 
was  in  existence;  the  unanimous  opinion  of  competent  scholars 
is  that  a  suitable  history  of  Spanish  law  has  not  yet  been  written. 

(3)  As  to  topics,  the  Committee  accepted  the  usual  Continental 
divisions  of  Civil  (or  Private),  Commercial,  Criminal,  Procedural, 
and  Public  Law,  and  endeavored  to  include  all  five.  But  to  repre- 
sent these  five  fields  under  each  principal  country  would  not  only 
exceed  the  inevitable  space-limits,  but  would  also  duplicate  much 
common  ground.  Hence,  the  grouping  of  the  individual  volumes 
was  arranged  partly  by  topics  and  partly  by  countries,  as  follows: 

Commercial  Law,  Criminal  Law,  Civil  Procedure,  and  Criminal 
Procedure,  were  allotted  each  a  volume;  in  this  volume  the  basis 
was  to  be  the  general  European  history  of  early  and  mediaeval 
times,  with  special  reference  to  one  chief  country  (France  or 
Germany)  for  the  later  periods,  and  with  an  excursus  on  another 
chief  country.  Then  the  Civil  (or  Private)  Law  of  France  and 
of  Germany  was  given  a  volume  each.  To  Italy  was  then  given 
a  volume  covering  all  five  parts  of  the  field.  For  Public  Law  (the 
subject  least  related  in  history  to  our  own),  a  volume  was  given 
to  France,  where  the  common  starting  point  with  England,  and 
the  later  divergences,  have  unusual  importance  for  the  history 
of  our  courts  and  legal  methods.  Finally,  two  volumes  were 
allotted  to  general  surveys  indispensable  for  viewing  the  connec- 

xiii 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tion  of  parts.  Of  these,  an  introductory  volume  deals  with  Sources, 
Literature,  and  General  Movements,  —  in  short,  the  external 
history  of  the  law,  as  the  Continentals  call  it  (corresponding  to 
the  aspects  covered  by  Book  I  of  Sir  F.  Pollock  and  Professor 
F.  W.  Maitland's  "History  of  the  English  Law  before  Edward  I") ; 
and  a  final  volume  analyzes  the  specific  features,  in  the  evolution 
of  doctrine,  common  to  all  the  modern  systems. 

Needless  to  say,  a  Series  thus  co-ordinated,  and  precisely  suited 
for  our  own  needs,  was  not  easy  to  construct  out  of  materials 
written  by  Continental  scholars  for  Continental  needs.  The 
Committee  hopes  that  due  allowance  will  be  made  for  the  diffi- 
culties here  encountered.  But  it  is  convinced  that  the  ideal  of 
a  co-ordinated  Series,  which  should  collate  and  fairly  cover 
the  various  fields  as  a  connected  whole,  is  a  correct  one;  and  the 
endeavor  to  achieve  it  will  sufficiently  explain  the  choice  of  the 
particular  materials  that  have  been  used. 

It  remains  to  acknowledge  the  Committee's  indebtedness  to 
all  those  who  have  made  this  Series  possible. 

To  numerous  scholarly  advisers  in  many  European  universities 
the  Committee  is  indebted  for  valuable  suggestions  towards 
choice  of  the  works  to  be  translated.  Fortified  by  this  advice, 
the  Committee  is  confident  that  the  authors  of  these  volumes 
represent  the  highest  scholarship,  the  latest  research,  and  the 
widest  repute,  among  European  legal  historians.  And  here  the 
Committee  desires  also  to  express  its  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of 
materials  for  legal  science  in  the  Gary  Library  of  Continental 
Law  (in  Northwestern  University) .  In  the  researches  of  prep- 
aration for  this  Series,  those  materials  were  found  indispensable. 

To  the  authors  the  Committee  is  grateful  for  their  willing 
co-operation  in  allowing  this  use  of  their  works.  Without  ex- 
ception, their  consent  has  been  cheerfully  accorded  in  the 
interest  of  legal  science. 

To  the  publishers  the  Committee  expresses  its  appreciation 
for  the  cordial  interest  shown  in  a  class  of  literature  so  impor- 
tant to  the  higher  interests  of  the  profession. 

To  the  translators,  the  Committee  acknowledges  a  particular 
gratitude.  The  accomplishments,  legal  and  linguistic,  needed  for 
a  task  of  this  sort  are  indeed  exacting;  and  suitable  translators 
are  here  no  less  needful  and  no  more  numerous  than  suitable 
authors.     The  Committee,  on  behalf  of  our  profession,  acknowl- 

xiv 


CONTINENTAL    LEGAL   HISTORY   SERIES 

edges  to  them  a  special  debt  for  their  cordial  services  on  behalf 
of  legal  science,  and  commends  them  to  the  readers  of  these  vol- 
umes with  the  reminder  that  without  their  labors  this  Series 
would  have  been  a  fruitless  dream. 

So  the  Committee,  satisfied  with  the  privilege  of  having  intro- 
duced these  authors  and  their  translators  to  the  public,  retires 
from  the  scene,  bespeaking  for  the  Series  the  interest  of  lawyers 
and  historians  alike. 

The  Editorial  Committee. 


XV 


THE 

PROGRESS  OF  CONTINENTAL  LAW 

IN  THE 

NINETEENTH  CENTURY 


CONTENTS 


PAGE 

List  of  Collaborators v 

Editorial  Committee  and  List  of  Translators vii 

General   Introduction   to   the   Continental   Legal   History 

Series xi 

Editorial  Preface  by  John  Henry  Wigmore xxix 

Introduction  by  Edwin  M.  Borchard xxxv 

Introduction  by  Sir  Frederick  Pollock,  Bart xli 


PART  I 

THE  MOVEMENT  FOR  THE  READJUSTMENT  OF 
LAW  TO  CHANGED  SOCIAL  AND  POLITI- 
CAL  CONDITIONS 


CHAPTER   I 

DOMINANT  LEGAL  IDEAS   IN   THE   FIRST   HALF   OF 
THE   CENTURY   AFTER   THE   FRENCH   REVOLUTION 


§  1.  Influence  of  the  Philoso- 
phy of  the  1700  s  upon 
the  Law  of  the  French 
Revolution 

§  2.  Influence  of  the  Philoso- 
phy and  the  Economics 
of  the  1700  s  upon  Codi- 
fication     


10 


§  3.  The  Principles  underlying- 
Codification      .... 

§  4.   Property  and  Family  .     . 

§  5.  Social  Influence  of  the 
Codification      .... 

§  6.  Influence  of  Codification 
upon  the  Philosophy  of 
Private  Law  and  upon 
General  Juridical  Science 


12 
18 

23 


27 


xix 


CONTENTS 


CHAPTER   II 

DOMINANT  INFLUENCES  TOWARDS  LEGAL  CHANGE 
IN   THE   SECOND   HALF   OF   THE   CENTURY 


§  1.  The  Civil  Code  as  Judged 
by  Public  Opinion  in  the 
1800  s.     (1)  Historians. 

(2)  Legal  Philosophers. 

(3)  Sociological  Philos- 
ophers. (4)  Other 
Schools 

§  2.  Attempts  to  Reform  the 
Science  of  Private  Law. 
(1)  Charles  Comte ;  La- 
boulaye ;  Courcelle- 
Seneuil.  (2)  Reforms 
of  Method 

§  3.  Renascence  in  Legal 
Science.  (1)  German 
Legal  Literature  of  the 
1800  s.  (2)  Causes  of 
Renascence  in  Countries 
of  Codification.     .     .     . 

§  4.  Modern  Trends  of  Change 
in  the  Law 

§  5.  Juridical  Effects  of  Politi- 
cal Changes,  (1)  Upon 


31 


37 


41 


45 


Public  International 
Law.  (2)  Upon  Pri- 
vate International  Law. 
(3)  Upon  Internal  Pub- 
lic Law 45 

§  6.  Juridical  Effects  of  Eco- 
nomic Changes,  (1)  Ex- 
pansion of  the  Civil  Law. 

(2)  Labor   Legislation. 

(3)  Other  Future  Ef- 
fects     50 

§  7.   Juridical    Effects    of    the 

New  Social  Doctrines    .       56 

§  8.    Solidarity 58 

§  9.  Legal  Effects  of  De- 
mocracy, (1)  Upon  the 
Relations  of  Husband 
and  Wife.  (2)  Upon 
the  Legal  Relations  of 
Parent  and  Child.  (3) 
Upon  the  Illegitimate 
Child 61 


§1- 
§2. 


§3. 


§  I- 


§5. 


CHAPTER   III 

CHANGES  OF  PRINCIPLE  IN  THE  FIELD  OF  LIBERTY, 
CONTRACT,  LIABILITY,  AND  PROPERTY 

I.   Subjective  Right  and  Social  Function;  the  Old  and 
the  New  Theories 


Scope  of  the  Subject     .     .       65 

Continuity  of  the  Devel- 
opment of  Law;  Prin- 
cipal Stages      ....       66 

The  "  Declaration  of  the 
Rights  of  Man";  The 
Napoleonic  Code  ...       67 

Their  Legal  System  a 
Metaphysical  and  Indi- 
vidualistic One     ...       68 

This    System   Supplanted 


by  a  Realistic  and  So- 
cial System  of  Law  .     .       72 

§  6.  The  Idea  of  Social  Func- 
tion       74 

§  7.  Solidarity,  or  Social  Inter- 
dependence, and  the 
Rule  of  Law     ....       75 

§  8.  Division  of  Labor  in  So- 
ciety     76 

§  9.  Essentials  of  the  Indi- 
vidualistic System    .     .       76 


XX 


CONTENTS 


II.   The  New  Conception  of  Liberty;     Sundry  Appli- 
cations 

1-AliE 


§  10.    Transformation    of    the 

Conception  of  Liberty       79 

§11.    Principal     Consequences 

of  this  Definition     .     .       80 


§  12.  Statutes  relating  to 
Workmen  and  Pen- 
sions       85 


III.  The  New  Conception  of  Liberty  (continued); 
Autonomy  of  the  Will,  Artificial  Person- 
ality and  Associations 


§  13.  Autonomy  of  the  Will  as 
an  Element  of  Liberty 

§  14.  Provisions  of  the  Napo- 
leonic Code  on  this 
Subject 

§  15.  Every  Subject  of  a  Right 
is  a  Subject  of  Will 

§  16.  Effort  to  Reconcile  this 
Conception  with  Pacts 
of  Life  

§  17.  The  Doctrine  of  Artifi- 
cial Personality  .     .     . 


§18. 

The    Movement    toward 

87 

Association     .     .     '.     . 

§19. 

Futility  of  the  Old  Doc- 

88 

§20. 

Elimination  of  the  Idea 
of  a  Subject  of  Right  . 

88 

§21. 

Legal  Protection  based 
upon  the  Social  Pur- 
pose   or    Function    of 

89 

§22. 

The  Idea  of  Purpose  in 

91 

the  French  Law  of  As- 

92 


93 


95 


96 


97 


IV.   The  Juridical  Act,  and  the  Law  of  Testaments 
and  Contracts 


§  31.    The  Roman   Conception 

of  Contract     ....     115 

§  32.   Juridical  Acts  which  are 

not  Contracts      .     .     .     116 

§  33.    Conduct    Equivalent    to 

Contract 117 

§  34.   Acts  of  Use  of  a  Public 

Service 118 

§  35.  Acts  Constituting  so- 
called  Collective  Con- 
tracts      11!) 

§  36.    Concession  to  Operate  a 

Public  Service     .     .     .     120 

§  37.  So-called  Collective  Con- 
tracts of  Labor  .     .     .     122 

§  38.    Compacts  Equivalent  to 

Laws 12-'5 

xxi 


§23. 

The     Autonomy   of    the 
Will 

100 

§24. 

The  Declaration  of  Will 

L02 

§  25. 

Object  and   Aim   of  the 

Juridical  Act       .     .     . 

104 

§26. 

Legal    States    of    Facts 
not  constituting  Rela- 
tions    between      Two 

110 

§  27. 

Private          Foundations 

created  bv  Testament 

111 

§  28. 

Decision  of  the  Courts  on 

this  Subject    .... 

112 

§29. 

Changes   in    the    Theory 
of  Contract     .... 

114 

§  30. 

The  Individualistic  Con- 

ception of  Contract 

114 

CONTENTS 


V.   The  New  Conception  of  Liability  for   an   Injurious 


§39. 
§40. 


§44. 


§45. 


§46. 


Act 


The  Individualistic  Prin- 
ciple of  Liability     .     .     124 

Subjective  Liability  for 
an  Injurious  Act  and 
Objective  Liability  for 
Risk 125 


§  41.  Objective  Liability  at- 
taches only  to  Groups     126 

§  42.    Liability  for  Injuries  to 

Workmen 126 

§  43.    Liability   for    Injury   in 

Public  Service     .     .     .     128 


VI.   The  New  Conception  of  Property  as  a  Social 


Function 


Property  ceasing  to  be  a 
Subjective  Right  of  the 
Owner,  and  becoming 
a  Social  Function  of 
the  Possessor  ....     129 

General  Economic  Need 
met  by  the  Legal 
Theory  of  Property      .     130 

Property   under  the   In- 
dividualistic System    .     130 
§  47.    Consequences      Rejected 

To-day 131 


§  48. 
§49. 

§50. 


§51. 
§52. 


§53. 


133 


The  Owner's  Obligations 

The  Obligation  to  Culti- 
vate Land 135 

The  Tax  upon  Unearned 
Increment,  in  England 
and  Germany      .     .     . 

Modern  Doctrine  as  to 
Use  of  Property  .     .     . 

The  Doctrine  as  to  Mis- 
use of  Property  .     .     . 

French  Act  of  1907  relat- 
ing to  Churches .     .     . 


136 


138 


140 


144 


CHAPTER    IV 

CHANGES  OF  PRINCIPLE  IN  THE  FIELD  OF  FAMILY, 
INHERITANCE,  AND  PERSONS 

Introduction 149 

I.   The  Family  of  Yesterday  and  of  To-day 


§  1.  Influence  of  Social  En- 
vironment      ....     150 

§  2.    The  Family  of   the  Old 

Regime 152 


§4. 
§5. 

§6- 


§  3.  Changes  in  the  Concen- 
tration of  Family 
Ties 


II.  Influence  of  Enforced  Partition  of  Estates 


Enforced  Partition  of  Es- 
tates   156 

Operation  of  Enforced 
Partition 158 

"  Hofrecht,"  "  Home- 
stead," "Arrondi- 
rung " 162 


§  7.    Restoration  of   Parental 
Testamentary    Power. 

(1)  Enlargement  of 
Disposable       Portion. 

(2)  Liberty  of  Family 
Arrangement.  ('■'>) 
Disinheritance    .    .    . 


III.   Tre  Corporation  and   the   Family 
§  8.    Results  of  the    Corpora-  I   §  0.      Effects  on  the  Family 

tion 167   I   §  10.    Proposed  Reforms  .     . 


155 


lr,| 


169 
171 


XXI 1 


CONTENTS 


IV.   The  Industrial  System  and  the  Family 

l'AOB 


§  11.  Present  Industrial  Or- 
ganization   174 

§  12.  State  Intervention.  (1) 
Child  Labor.  (2)  Ex- 
ceptions       176 

§13.    Other  Reforms;  Employ- 


ment of  Women;  Sun- 
day Rest 180 

§  14.  Industrial  Employment 
of  Women  in  the 
Home 181 


V.    Formalities  of  Marriage 


§  15.    Exaggerated  Formalism 

of  the  Code     ....     183 
§  16.    Legislative  Reforms   .     .     185 


§  17.    Criticism  of  Reforms 
§  18.    Foreign  Legislation    . 


186 

188 


VI.   Social  Value  of  Marriage 


§  19.    Disapproval  of    the    In- 
stitution of  Marriage  . 


190 


§  20.   Refutation       of       these 

Views 191 


VII.    Married  Women's  Status 


§  21.   Parental     and     Marital 

Authority 193 

§  22.  History  of  the  Limita- 
tions Imposed     .     .     .     194 

§  23.   Early  and  Revolutionary 

Law 196 

§  24.   Napoleon's  Hostility  .     .     196 


§  25.   Wife's  Civil  Incapacity  .  197 

§  26.    Her  Nationality      ...  199 

§  27.    Her  Name 199 

§  28.    Her  Loss  of  Liberty   .     .  200 
§  29.    Inequality    of     Parental 

Authority 201 


VIII.    Married  Women's  Property 


§30. 
§31 

§32 
§33 


Diversity  of  Matrimonial 
Systems 204 

Administrative  Union  in 
Germany  and  Switzer- 
land   

Objections ;  Community 
Limited  to  Acquests    . 

Husband's  Excessive 
Powers  under  Com- 
munity   209 

§  34.   The  Wife's  Savings.    (1) 


205 


207 


Practice  under  the 
Law  of  1881.  (2)  The 
Law  of  1895   .... 

§  35.  The  Wife's  Earnings. 
(1)  What  are  Earn- 
ings? (2)  Scope  of 
Her  Power.  (3)  Ef- 
fect of  Dissolution  of 
Community    .... 

§  36.  Penalty  Attaching  to 
Marriage  Obligations  . 


IX.   Status  of  Minors:     (1)  Abandoned  Children 

§  37.  Two  Conceptions  of  Pa- 
rental Power;  Concep- 
tion of  the  Civil  Code     219 


209 


213 


217 


§  38.  State  Relief  of  Aban- 
doned Children ;  Prac- 
tice under  State  Relief 
Law 221 


xxm 


CONTENTS 


§39. 


X.   Status  of  Minors  : 

PAGE 

Protection  against 

Parents 224 

§  40.   Relief  Legislation ;  Law 

of  1889 225 

§  41.    Forfeiture    of     Parental 

Authority 

Forfeiture  without  Penal 

Sentence     

Effects     of     Forfeiture ; 

Voluntary  Guardian    . 


§42. 
§43. 


227 
227 
229 


(2)  Neglected  Children 

PAQIJ 

§  44.    Restoration  of   Parental 

Authority 231 

§  45.   Scope  of  the  Law  of  1889     231 

§  46.   Judicial  Dispossession  of 

Authority 232 

§  47.  Criticism  of  the  Re- 
forms      234 

§  48.   Legislation      in      Other 

Countries 237 


XL    Status  of  Minors  :     (3)  Vicious  and  Delinquent 
Children 


§  49.   Increase      of      Juvenile 

Crime 238 

§  50.  Parental  Correction ;  Es- 
timate of  the  Law ;  Re- 
sults ...'....     239 


§  51.    Minors  under  the  Crimi- 
nal Law 

§  52.    Correctional  Institutions 
§  53.   Preventive  Measures  .     . 


242 
213 
245 


PART   II 

THE  MOVEMENT   FOR    THE   NATIONAL   CODI- 
FICATION  OF   LAW 


CHAPTER   V 

THE  INFLUENCE   OF   THE    NAPOLEONIC   CODIFICA- 
TION  IN   OTHER   COUNTRIES 


§  1.  Influence  upon  other 
Continental  and  Extra- 
European    Legislation     251 


§  2.  Influence  upon  the  Anglo- 
American  System    .     . 

§  3.  Influence  upon  Interna- 
tional Law      .... 


256 


260 


CHAPTER   VI 

THE  FRENCH  CODE  OF  1804,  THE  AUSTRIAN  CODE 
OF  1811,  THE  GERMAN  CODE  OF  1900,  AND  THE 
SWISS  CODE  OF  1907;  A  CONTRAST  OF  THEIR 
SPIRIT   AND   INFLUENCE 

Introduction 263 

many.       (2)    In    Ger- 
many.      (3)    Interna- 
265  tional    Significance   of 

the  French  Code    .     .     269 
§  3.   The  Austrian  Civil  Code     275 


§  1.  Roman  Law  and  Mod- 
ern Codes  as  Instru- 
ments of  Unification   . 

§  2.  The  French  Civil  Code. 
(1)  Outside    of    Ger- 


xxiv 


CONTENTS 


§  4.  The  German  Civil  Code. 
(1)  The  German  Civil 
Code  in  France.  (2) 
Distinguishing  Princi- 
ples of  the  German  Code. 


§5. 


(3)  The  Judicial  Func- 
tion under  the  Ger- 
man, Swiss,  and  French 

Codes 277 

The  Swiss  Civil  Code  .     .     283 


CHAPTER   VII 

A  CENTURY'S  PROGRESS  IN  RESHAPING  THE  LAW; 
THE  GERMAN  AND  THE  SWISS  CODES  COM- 
PARED  WITH   THE    FRENCH   CODE 


§  1.  The  Problem  of  Code  Re- 
vision. Value  of  Ger- 
many and  Switzerland 
as  Examples     ....     286 

§  2.  Code  Napoleon ;  Criti- 
cisms of  Theory :  (1) 
Obsolete  Doctrines. 

(2)     New  Legal 

Theoi'ies.  (3)  Scien- 
tific Arrangement     .     .     290 

§  3.    Economic  and  Sociological 

Criticisms 294 

§  4.  The  Same  ;  a  Class  Legis- 
lation        295 

§  5.  The  Same ;  Old  Concepts 
of  Liberty  and  Equality : 
(1)  The  Effects  of  Soli- 


darity. (2)  Admission 
of  New  Principles 
through      Old      Texts. 

(3)  Admission  of  Prin- 
ciples without  any  Foun- 
dation in  the  Texts.  (4) 
Changes  Requiring  Leg- 
islation    ......     296 

§  6.  Criticism  of  Specific  Pro- 
visions :  (1)  The  Mar- 
ried Woman.  (2)  Pro- 
tection of  Children.  (3) 
Illegitimate      Children. 

(4)  Succession.  (5) 
Property.  (6)  Con- 
tracts   301 

§  7.    Conclusion 307 


CHAPTER   VIII 
THE   ITALIAN   CIVIL   CODE   OF   1868 


§  1.  The  Motives  for  Codifica- 
tion      308 

§  2.    International     Status     as 

regulated  in  the  Code    .     310 

§  3.    Ecclesiastical  Relations  as 

regulated  in  the  Code    .     312 


§  4.    Law  of   Persons  as  regu- 
lated in  the  Code       .     .  317 
§  5.    Property  under  the  Code  323 
§  6.    Contract  under  the  Code  325 
§  7.    The  Code  as    a   National 

Achievement    ....  329 


§  1.  By  the  1850  s  French  In- 
fluence Dominant 
through  the  Commer- 
cial Code  and  Judicial 
Practice 332 


CHAPTER   IX 

THE   COMMERCIAL   CODES 

§  2.    Backwardness  of  Germany 


and  Italy 333 

§  3.  Renascence  in  Germany; 
Work  of  Thol  and 
Goldschmidt    ....     334 


XXV 


CONTENTS 


§  4.  The  German  Commercial 
Code  of  1861  and  its 
Influence 338 


§  5.    France  since  1850 
§  6.   Italy  since  1850 


PAGE 

340 
341 


PART   III 

THE  MOVEMENT   FOR   THE   INTERNATIONAL 
ASSIMILATION   OF  LAW 


CHAPTER  X 


THE   BEGINNINGS   OF 
ASSIMILATION   OF 

§  1.  The  Interchange  of  Na- 
tional Laws    ....     347 

§  2.  (I)  Mutual  Assimilation 
of  Commercial  Law ; 
the  Beginnings  of  the 
Idea 350 

§  3.  Progress  of  the  Move- 
ment       352 

§  4.    Practical  Fruition  of  the 

Movement 354 

§  5.    (II)  The  Law  of  Railway 

Freights 357 

§  6.  The  Berne  Draft  Conven- 
tion    359 

§  7.  (Ill)  The  Law  of  Nego- 
tiable Instruments. 
Early  History      .     .     .     362 

§  8.    Attempts  at  Uniformity     364 


THE   INTERNATIONAL 
COMMERCIAL   LAW 


9. 

The    Bremen    and   Ant- 

werp Drafts    .... 

366 

10. 

Difficulties   in   the    Way 

of  Uniformity     .     .     . 

369 

11. 

Further   Obstacles    Con- 

371 

12. 

Existing  Types  of  Law  . 

372 

12  a.   The  Congresses  of  1910 

and  1912     

375 

13. 

(IV)  Maritime    Law   of 

General  Average     .     . 

382 

14. 

International  Differences 

385 

15. 

The  Need  for  Uniformity 

386 

16. 

The  York  Rules     .     .     . 

388 

17. 

The  York-Antwerp  Rules 

390 

18. 

Uniformity    by    Private 

Agreement     .... 

392 

19. 

395 

CHAPTER   XI 

THE   PROGRESS   OF   THE   UNIFICATION   OF 
MARITIME   LAW 


§  1.  Distinctive  and  Original 
Character  of  Maritime 
Law 396 

§  2.  Traditionalism  and  Evo- 
lution      401 

§  3.   Present     Tendencies    of 

Maritime  Interests .     .     404 

XXVI 


§  4.    History    of     Unification 

of  Maritime  Law     .     .     406 

§  5.  Methods  of  Unifica- 
tion     409 

§6.  Modern  Attempts  at  Uni- 
fication   412 


CONTENTS 


CHAPTER   XII 

THE   PROGRESS   OF    UNIFICATION   BY   INTERNA- 
TIONAL  BODIES   OF   OFFICIAL   EXPERTS 


§  1.   Impulses  to  Regulation  by  Official  Expert  Unions 


I.     Communication 


PAGE 

416 


§  2.  The  Telegraphic  Union  .  419 
§  3.  Wireless  Telegraphy  .  423 
§  4.    The     Universal     Postal 

Union 425 

§  5.    The  International  Union 


of      Railway     Freight 

Transportation   .     .     .  432 

§  6.    Automobile  Conference  .  430 

§  7.   Navigation 437 


II.     Economic  Interests 


§  8.    The  Metric  Union       .     .  438 
§  9.    Patents,        Trademarks, 

and  Copyrights  .     .     .  439 

§  10.    Protection  of  Labor    .     .  445 


§11.    The  Sugar  Convention   .    452 

§  12.    Agriculture 454 

§  13.   Insurance 458 


III.     Sanitation  and  Prison  Reform 


§  14.    The  International  Prison 

Congress 459 

§  15.    International  Sanitation     459 


§16.    The  International  Opium 

Commission    ....     463 
§  17.   The  Geneva  Convention     464 


IV. 

§  18.  Fisheries  Police  .  .  . 
§  19.    Protection  of  Submarine 

Cables 

§  20.   African  Slave  Trade  and 

Liquor  Traffic     .     .     . 


Police  Powers 
464 


465 


466 


§  21.    The  White  Slave  Trade     466 
§  22.    The      South      American 

Police  Convention  .     .     468 


CHAPTER   XIII 

THE   HARMONIZATION   OF   THE   RULES   FOR 
CONFLICT   OF   LAWS 

Part  I.     The  Results  of  the  Hague  Conferences 

§  1.    The  Hague  Conferences  of  1893,  1894,  1900,  and  1904    .     .     , 


I.     The  AVork  accomplished  by  the  Conferences 

§  2.    (A)  International    Civil 

Procedure 473 

§  3.  (B)  International  Pri- 
vate Law 478 


§  4.  Same :  1.  The  Conven- 
tion upon  Marriage 

§  5.  Same :  2.  The  Treaty 
upon  Divorce      .     .     . 


470 

480 
483 


xxvn 


CONTENTS 


6.  Same:  3.  The  Treaty 
upon  the  Guardianship 
of  Minors,  and  the 
Draft  Convention  upon 
Interdiction      ....     486 


§  7.   Same :     4.    The    Treaty 

upon  Succession      .     .     487 

§  8.    (C)    International    Law 

of  Bankruptcy    .     .     .     488 


II.     The  Future  Possibilities  of  Accomplishment 

§  9.    The  Prospects  of   Anglo-  §  10.    Resume 497 

American    Cooperation     491 


Part  II.     A  Comparison  of  the  European  and  the  Lai  in- 
American  Conferences  and  their  Tendencies 


§  1.  Method  of  Assimilation 
of  Private  International 
Law 

§  2.  The  Latin- American  Con- 
gresses      

§  3.    The    Hague    Conferences 

§  4.  The  Latin-American  and 
the  European  Agree- 
ments Contrasted      .     . 


502 

503 
506 


507 


§  5.  The  Pan-American  Con- 
gresses    511 

§  6.    Operation  of   the   Rules 

in  Practice      ....     512 

§  7.    Present    Tendencies     of 

Principle 516 


CHAPTEE  XIV 

A   WORLD   COMMON   LAW  :     ITS   NEED,   ITS   SCOPE, 
AND   ITS   PROSPECTS— A   SYMPOSIUM 

I.   The   Necessary  Diversity   of   Law,  according   to   Races 

and  Nations 520 

II.   A  World  Common  Law,  as  Needful  and  Feasible  within 

Limited  Fields 525 

III.    The  International  Assimilation  of  Law;  its  Needs  and 

Possibilities  from  an  American  Standpoint     ....     536 

INDEX 549 


xxvm 


t 

EDITORIAL   PREFACE 
By  John  H.  Wigmore  x 

To  conclude  this  Series,  which  covers  an  historical  span  of 
fifteen  centuries,  it  seemed  natural,  for  the  final  volume,  to  shorten 
the  focus  of  view  and  to  enlarge  the  lens ;  in  other  words,  to  sur- 
vey the  final  century  preceding  our  own  times  with  greater  detail 
and  on  broad  lines  independent  of  particular  countries.  We 
should  then  be  better  enabled  to  detect  the  main  trends  of  recent 
development  as  they  approach  and  merge  into  the  law  of  to-day, 
and  to  observe  more  closely  the  direct  connection  of  the  past  with 
the  present  and  the  immediate  future.  A  great  light  ought  thus 
to  be  thrown  on  the  meaning  of  the  legal  changes  that  may  to-day 
be  perceptible  in  process  of  being. 

After  the  first  two  introductory  volumes  of  general  survey, 
the  succeeding  seven  volumes  dealt,  some  with  general  divi- 
sions of  law  in  all  the  countries,  and  some  with  the  law  of  a 
specific  country.  In  each  of  these,  the  account  was  brought  down 
into  the  nineteenth  century.  But  that  century  was  controlled 
by  certain  general  influences  affecting  all  countries  and  all 
branches  of  law  in  common.  Hence  a  better  view  remains  to 
be  gained  of  the  movements  common  to  all,  by  surveying  the 
century  as  a  whole. 

An  examination  of  the  literature,  made  without  assumptions, 
seemed  to  reveal  three  such  general  movements. 

1  [Professor  of  law  in  Northwestern  University,  member  of  the  Illi- 
nois Commission  on  Uniform  State  Legislation,  chairman  of  the  Com- 
mittee on  the  Study  of  Legal  History  of  the  Association  of  American  Law 
Schools.] 

xxix 


EDITORIAL    PREFACE 

The  first  could  be  broadly  described  as  the  Movement  for  Ad- 
justment of  the  Law  to  Changed  Social  and  Political  Conditions ; 
this  succeeded  the  political  philosophy  of  the  eighteenth  century, 
the  intellectual  efforts  of  the  "Enlightenment"  period,  and  the 
social  upheaval  of  the  French  Revolution. 

The  second  was  the  Movement  for  the  National  Codification 
of  Law  ;  this  in  part  was  produced  by  the  same  influences,  but  had 
also  different  causes,  some  earlier,  some  later,  and  was  in  form 
independent  of  the  other ;  moreover,  its  effects  were  distinct ; 
and,  finally,  it  ended  earlier  in  most  countries,  while  the  first 
movement  is  far  from  terminated  anywhere. 

The  third  movement,  that  of  the  Assimilation  (or  Unification) 
of  the  Private  Law  of  the  several  nations,  began  only  in  the  second 
half  of  the  century,  and  is  as  yet  just  gathering  force  for  its  cul- 
mination ;  in  a  way,  it  is  a  reaction  from  the  second  movement, 
and  it  will  probably  last  through  the  present  century. 

Though  the  scope  of  the  present  Series  is  the  history  of  law  on 
the  Continent  of  Europe,  yet  the  first  and  the  third  of  these  move- 
ments (the  second  only  in  slight  degree)  represent  forces  which 
also  have  affected  Anglo-American  law,  —  and  for  the  reason 
that  the  intellectual,  political,  and  commercial  conditions  giving 
rise  to  the  movements  were  more  or  less  shared  by  all  Occidental 
nations.  All  the  more  important,  therefore,  is  the  legal  history 
of  that  century  to  Anglo-American  students.  It  can  hardly  be 
less  than  a  revelation  to  some  of  us  to  find  the  nations  of  the  Con- 
tinent, separate  from  us  so  long  in  their  legal  annals  and  dominated 
by  the  science  of  Romanic  law,  nevertheless  passing  in  their  recent 
legal  development  through  phases  of  thought  sometimes  identical 
with  what  we  have  believed  to  be  peculiar  in  our  own  problems. 
Nothing  could  illustrate  better  the  communalty  of  legal  thinking 
which  seems  to  be  a  feature  of  the  approaching  times  and  an 
accessory  of  the  third  great  movement. 

For  Part  I,  covering  the  first  of  these  movements,  the  introduc- 
tion is  furnished  by  Alvarez'  brilliant  chapter  describing  the 
transition  of  spirit  from  the  eighteenth  to  the  nineteenth  century. 
Then  follows  Duguit's  incomparable  monograph,  pointing  out 
the  significant  details  of  the  transformation  in  many  fields ;  this 
monograph  has  marked  its  author  as  one  of  the  most  understanding 
interpreters  among  legal  thinkers  of  to-day.1     In  the  remaining 

1  His  other  work,  "Les  transformations  du  droit  public",  is  of  equal 
significance  in  political  science,  but  falls  without  the  purview  of  this  Series. 

XXX 


EDITORIAL    PREFACE 

fields,  Charmont's  lucid  and  cosmopolitan  chapters  form  a  fitting 
complement;  the  omitted  chapters  of  Gharmont's  book  cover 
substantially  the  same  themes  treated  by  Duguit.  A  valuable 
treatise  by  Hedemann,  dealing  with  the  same  general  field,  some- 
times in  more  detail  and  for  a  larger  number  of  countries,  could 
not  be  used,  being  as  yet  in  embryo  only.1 

It  must  be  noted  that  the  field  of  Commercial  Law,  in  the  stricter 
sense  of  Continental  usage,  seems  not  to  have  found  anywhere  yet 
a  recorder  of  its  progress.  Search  in  every  supposable  quarter, 
in  half-a-dozen  languages,  and  inquiry  of  Continental  scholars 
who  ought  to  know,  has  revealed  no  chapter  or  volume  doing  for 
commercial  law  the  service  rendered  by  Duguit,  Charmont,  and 
Hedemann  for  civil  law. 

Part  II  opens  with  another  chapter  from  Alvarez'  useful  book ; 
and  then  Perich's  comprehensive  survey  shows  us  the  principal 
features  of  national  codification  to  the  end  of  the  century.  Then 
follows  Gaudemet's  sympathetic  comparison  of  the  Swiss  and  the 
French  civil  codes,  the  latest  and  the  earliest  products  of  the  move- 
ment. Vanni's  essay  analyzes  the  Italian  achievement  of  1863 ; 
and  Rocco's  essay  sketches  the  several  stages  of  codification  of 
commercial  law. 

For  this  movement,  the  useful  literature  is  more  scanty  than 
might  have  been  expected.  The  critiques  prior  to  the  present 
generation  are  obviously  too  near  the  unfinished  total  event  to 
have  value  from  our  present  point  of  view.  Glasson's  brief  sur- 
vey 2  is  almost  the  only  modern  account,  not  here  included,  that 
offers  more  than  a  mere  chronicle  of  the  dates  of  the  various  codes. 

1  "Die  Fortschritte  des  Zivilrechts  im  XlXten  Jahrhundert ",  by 
Justus  Wilhelm  Hedemann,  professor  at  Jena  (Berlin,  Carl  Heymann) ; 
Part  I  appeared  in  1910 ;  the  author  informed  us  in  1913  that  the  remain- 
ing two  Parts  would  not  be  complete  before  1918  or  1919 ;  but  the  Great 
War  will  doubtless  prolong  the  delay. 

A  mine  of  information,  for  the  local  French  movement  in  the  first  half 
of  the  century,  is  Bonnecase,  "La  science  du  droit  prive  en  France  au 
debut  du  XIXe  siecle"  (Paris,  1914). 

A  short  account  for  Italy,  partly  supplementing  Vanni's  essay  above, 
is  Rocco's  "La  scienza  del  diritto  privato  in  Italia  nell'  ultimi  50  anni" 
("Rivista  di  diritto  commerciale  ",  1911,  Vol.  IX). 

A  comprehensive  and  informing  monograph,  largely  historical,  which 
covers  in  part  the  same  topics  as  Charmont's  chapters  is  Alvarez'  "De 
l'influence  des  phenomenes  politiques,  economiques,  et  sociaux  dans 
l'organisation  de  la  famille  moderne"  (Paris,  1889). 

ThabauVs  "L'evolution  de  la  legislation  sur  la  famille,  1904-1913" 
(Paris,  1913),  is  a  valuable  study  of  tendencies  in  France,  written  from  a 
Catholic  point  of  view,  but  broad  and  rational  in  spirit. 

*  "La  codification  au  XIXe  siecle  ",  by  E.  Glasson,  late  professor  at  the 
University  of  Paris"  ("Revue  politique  et  parlementaire  ",  1894,  Part  II). 

xxxi 


EDITORIAL   PREFACE 

In  the  various  chapters  of  that  treasure-house  of  constructive 
criticism  "Livre  Centenaire  du  Code  Civil"  (1904),  much  relevant 
information  is  scattered ;  but  not  in  form  available  for  concise 
borrowing.1 

Part  III  is  opened  by  Cohn's  interesting  account  of  the  begin- 
nings of  the  movement  for  the  assimilation  of  law  among  the  com- 
mercial nations.  Looking  back  at  the  story  from  to-day's  achieve- 
ments, it  partakes  of  that  romance  which  success  gives  to  the 
beginnings  of  all  great  enterprises;  and,  like  the  anti-slavery 
movement  and  others  that  have  changed  the  world's  history,  it 
is  seen  to  take  origin  in  fruitless  but  necessary  idealism  and  then 
to  pass  into  an  effective  realism. 

The  unitary  movement,  and  its  peculiar  phases,  in  maritime 
law  is  then  portrayed  in  Ripert's  chapter,  lucid  and  coherent 
in  the  best  French  manner.  In  this  region  of  law,  perhaps  the 
most  notable  item  of  unity,  the  rules  for  navigation  at  sea  (now 
adopted  by  some  thirty  countries),  appear  not  yet  to  have  found 
their  historian ;  but  possibly  his  account  is  concealed  in  some 
by-path  of  periodical  literature,  and  the  mention  of  the  subject 
here  may  evoke  a  reference  from  one  who  knows. 

The  most  fertile  field  for  the  assimilative  and  cooperative 
movement,  that  of  administrative  law  framed  by  expert  delegates 
and  embodied  in  conventions,  is  treated  in  a  chapter  from 
Reinsch's  comprehensive  work.2  The  legal  aspect  of  this  subject 
is  but  one  side  of  the  enormous  activity  of  the  last  fifty  years  in 
international  congresses;  and  in  Brussels,  the  home  of  inter- 
national peaceful  activities,  there  is  even  an  International  Bu- 
reau of  International  Congresses.3 

The  remaining  principal  field  for  harmonization  of  law,  that  of 
rules  for  solving  conflict  of  laws,  is  represented  by  an  essay  of  Meili 
supplemented  by  an  article  of  Baldwin.     The  late  Swiss  jurist 

1  For  the  centenary  of  the  Austrian  Civil  Code,  a  similar  work  was 
published,  but  its  materials  are  chiefly  of  a  significance  too  local  for  the 
present  volume:  "Festschrift  zur  Jahrhundertfcier  des  Allgemeinen 
Biirgerlichen  Gesetzbuches"  (2  vols.,  Vienna,  1911). 

2  The  progress  of  this  class  of  assimilated  law  is  also  shown  in  Raymond 
L.  Bridgman's  "First  Book  of  World  Law:  a  Compilation  of  the  Inter- 
national Conventions  to  which  the  Principal  Nations  are  Signatory,  with 
a  Survey  of  their  Significance"  (Boston,  1911).  Mr.  Bridgman's  work 
includes  the  text  of  the  conventions. 

3  A  list  of  the  principal  international  congresses  of  the  past  century 
is  given  as  an  appendix  to  Judge  Baldwin's  article  ("  Amer.  J.  of  Inter- 
national Law",  1907,  Vol.  I,  Pt.  2,  App.,  p.  808),  "The  International 
Congresses  and  Conferences  of  the  Last  Century  as  Forces  making  towards 
the  Solidarity  of  the  World." 

xxxii 


EDITORIAL    PREFACE 

was  one  of  the-  most  fruitful  and  indefatigable  workers  in  this 
subject ;  and  Judge  Baldwin  is  its  most  distinguished  represent- 
ative in  American  thought  and  activity.1 

This  Part,  it  was  thought,  could  fittingly  be  closed  by  a  glance 
in  the  direction  of  the  future.  The  annals  of  the  last  half  century 
record  the  vigorous  growth  of  this  tremendous  movement  — 
the  greatest  in  scope  and  international  potency  since  the  French 
Revolution,  and  not  matched  by  any  other  in  the  realm  of  law 
since  the  revival  of  Roman  Law  on  the  Continent  eight  centuries 
ago.  And  we  are  naturally  curious  to  gauge  its  possibilities,  by 
way  of  interpretation  of  its  historical  significance. 

The  attempts  to  forecast  its  trend  have  not  been  numerous.2 
Those  here  presented  —  from  a  Belgian,  a  Swiss,  and  an  American 

—  are  chosen  because  they  approach  it  from  different  points  of 
view. 

1  An  interesting  and  important  aspect  of  this  movement  would  have 
been,  The  Assimilating  Influence  of  Roman  Law  upon  the  National  Laws, 

—  an  influence  that  reached  its  end  in  the  nineteenth  century  and  left  its 
final  mark  in  the  German  Civil  Code.  A  survey  of  the  net  results  traceable 
in  contemporary  Continental  legislation  would  exhibit  the  extent  of  the 
common  stock  of  specific  legal  ideas  due  to  this  source.  After  considerable 
search  the  Committee  became  assured  that  no  such  treatise  or  essay  had 
yet  been  published,  and  decided  to  invite  its  composition  by  a  Conti- 
nental scholar.  For  this  purpose,  after  a  survey  of  the  possibilities,  they 
secured  the  cooperation,  late  in  1913,  of  the  eminent  professor  of  compara- 
tive law  at  the  University  of  Brussels,  Rene  Marcq.  The  essay  was  to 
be  completed  by  the  spring  of  1915.  But  the  Faithless  Outrage  of  August 
2,  1914,  had  its  disastrous  effects  in  this  corner  of  science  also.  In  spite 
of  many  efforts,  no  news  of  any  kind  has  been  obtained  of  the  fate  of  the 
author. 

The  Editor  here  offers  his  homage  to  the  name  of  one  who  would  have 
been  counted  among  our  collaborators. 

2  The  essay  of  Ivan  Perich  (author  of  Chapter  VI  in  this  volume), 
"De  l'influence  de  l'unite  de  la  legislation  sur  la  developpement  de  la 
solidarite  parmi  les  hommes"  (published  in  "Compte  rendu  du  10°  Congres 
de  la  federation  Europeenne",  Rome,  Forzoni,  1909),  is  an  idealistic  ad- 
vocacy of  unification. 

The  essay  of  Dove,  "Die  Vereinfachung  des  internationalen  Rechts- 
verkehrs"  (in  "Blatter  fur  vergleichende  Rechtswissenschaft  und  Volks- 
wirthschaftslehre",  1911,  Vol.  VII,  pp.  119,  149),  is  a  summary  survey 
of  possibilities. 

The  essay  of  Julius  Ofner,  "Die  Grundgedanke  des  Weltrechts" 
(Vienna,  Holder,  1889),  is  rather  an  enlightened  study  of  common 
tendencies  than  of  formal  assimilation  of  the  various  systems  of 
law. 

It  is  regrettable  that  a  chapter  could  not  here  have  been  included  from 
the  pen  of  the  eminent  Bonn  professor,  Ernst  Zitelmann.  His  essay 
"Die  Moglichkeit  eines  Weltrechts"  was  first  printed  some  thirty  years 
ago  in  the  Vienna  "Allgemeine  Gerichtszeitung  ",  and  then  reprinted  at 
Vienna  in  1888.  But  the  reprint,  at  the  time  of  our  request  in  1913, 
was  exhausted  and  unprocurable.  A  new  and  enlarged  edition  was  due 
to  appear  in  1914  (Duncker  and  Humblot,  Leipzig  and  Berlin) ;  but  the 
outbreak  of  the  war  came  too  soon.  Doubtless,  if  it  ever  appears,  it  will 
be  a  different  book  from  the  one  that  was  composing  in  1914. 

xxxiii 


EDITORIAL   PREFACE 


The  gift  of  prophecy  is  not  ours.  But  it  is  certain  that  war 
can  only  delay  and  not  deflect  nor  annul  the  speedy  progress  of 
this  normal  growth  in  world-harmony.  The  chapter  of  History 
that  must  soonest  be  rewritten  is  the  chapter  on  the  Assimilation 
and  Harmonization  of  World-Law. 


xxxiv 


INTRODUCTION 
By  Edwin  M.  B orchard  1 

The  publication  of  this  work,  the  concluding  volume  of  a 
notable  series,  marks  an  achievement  in  American  legal  litera- 
ture. The  editors  of  this  series,  men  of  broad  vision  who  see  in 
the  evolution  of  law  through  the  centuries  something  of  the 
Ciceronean  universality  of  law,  have  sought  to  bring  within  the 
horizon  of  the  student  of  Anglo-American  legal  institutions  a 
panorama  of  the  unfolding  of  the  law  as  a  social  phenomenon. 
In  the  process,  some  of  the  world's  finest  studies  have  been  laid 
under  contribution.  In  the  present  volume,  attention  is  con- 
centrated upon  the  developments  of  the  nineteenth  century,  for 
the  lawyer  of  today  the  most  interesting  and  profitable  of  all. 

The  basis  of  modern  life  is  economic.  The  revelations  of 
science  as  applied  to  industry  have  worked  a  metamorphosis  in 
economic  conditions  between  the  beginning  and  the  end  of  the 
nineteenth  century.  These  economic  changes  have  brought  in 
their  train  social  changes,  and  these  have  been  reflected  in  the 
law.  The  eighteenth  century  philosophy  and  the  individualism 
of  the  French  Revolution  which  found  legal  expression  in  the 
French  civil  code  and  in  its  widely  diffused  progeny  in  other 
countries  began  slowly  to  be  replaced  by  the  sociological  philosophy 
of  the  later  nineteenth  century.  Large  scale  industry,  the  rapid 
increase  and  accumulation  of  personal  property,  the  growing 
complexity  of  business  relationships  arising  out  of  corporate  or- 
ganization and  combination,  the  concentration  of  population  in 
urban  communities  and  the  ever  greater  facilities  for  communica- 
tion, transportation,  and  international  commerce  and  intercourse 
have  brought  about  remarkable  changes  in  social  conditions,  re- 
flected in  the  law  by  transformations  in  private  and  public  law. 
Early  nineteenth  century  individualistic  notions  of  liberty,  liability, 
contract,  and  property  have  had  to  yield  to  new  interpretations  im- 

1  [Professor  of  Law  in  Yale  University ;  formerly  Law  Librarian  of 
Congress.  —  Ed.] 

xxxv 


INTRODUCTION 

pelled  by  the  new  conception  of  social  solidarity.  Former  theories 
of  liberty  have  been  modified  by  a  recognition  of  human  life  as  a 
social  asset  and  of  the  state's  duty  to  protect  it  as  such,  and  meta- 
physical conceptions  have  almost  vanished  before  the  more  con- 
vincing teleological  theory  of  law ;  liability  has  ceased  to  be 
altogether  subjective  and  in  industrial  enterprise  and  public 
services  has  become  objective,  a  process  which  has  been  carried 
furthest  by  the  decisions  of  the  French  Council  of  State ;  a  private 
contract  is  no  longer  a  formalistic  instrument,  but  embraces  in  its 
legal  interpretation  ever  increasing  elements  of  social  purpose ; 
and  property  is  no  longer  an  unlimited  subjective  right  of  the 
owner,  but  constitutes  a  public  trust.  In  our  own  country  we 
have  recently  witnessed  this  same  evolution  in  the  theories  of 
liberty  of  contract,  liability  without  fault,  and  assumption  of  risk. 

With  this  change  in  legal  interpretation  of  philosophical  con- 
cepts has  come  an  ever  increasing  expansion  in  the  functions  of 
the  state,  to  prevent  a  violation  of  what  may  be  called  social 
justice  and  to  protect  the  public  interests.  This  activity  is  mani- 
fested by  the  increasing  number  of  administrative  commissions 
and  bodies  designed  to  insure  the  equitable  operation  of  public 
legislation  and  in  part  to  replace  the  ordinary  judicial  processes, 
with  a  coincidental  modification  of  the  ordinary  rules  of  procedure 
and  evidence.  In  our  country,  the  line  of  demarcation  between 
the  police  power  and  the  constitutional  limitations  of  the  fifth 
and  fourteenth  amendments  is  being  gradually  moved  in  the 
direction  dictated  by  the  larger  social  interests  of  the  state. 
Whether  this  represents,  particularly  in  the  field  of  labor  legis- 
lation, a  reaction  against  Sir  Henry  Maine's  theory  of  evolution 
from  status  to  contract  or  merely  a  recognition  of  the  necessity 
for  greater  protection  of  the  social  interests  of  the  state,  it  is 
beyond  doubt  that  private  property  and  private  rights  are  now 
affected  with  a  trust  founded  on  social  duties  in  the  public  interest. 

These  movements  in  continental  Europe  from  the  French  civil 
code,  with  its  inspiration  in  eighteenth  century  philosophy  and 
individualistic  legal  theories,  to  the  Swiss  civil  code  of  1907,  said 
to  be  the  best  expression  in  positive  legislation  of  the  socialization 
of  civil  law,  with  their  cross-currents,  their  causes,  purposes,  in- 
fluences, and  achievements  through  the  century  have  been  ably 
traced  in  the  two  notable  contributions  of  the  Chilean  jurist, 
Alvarez,  and  the  French  jurist,  Duguit.  The  essay  by  Charmont, 
which  follows,  is  an  analytical  study  of  the  French  law  of  domestic 
relations  as  affected  by  the  economic  and  social  changes  of  the 

xxxvi 


INTRODUCTION 

nineteenth  century.  Its  criticisms  of  the  modern  corporation,  its 
examination  of  labor  legislation,  and  its  critical  study  of  the 
changes  in  the  law  of  marriage,  parental  authority,  and  the  protec- 
tion of  minors  are  of  undoubted  interest  to  the  American  student. 

The  transformation  in  law  by  legislation  and  interpretation  in 
countries  of  a  civilization  and  economic  stage  of  development  so 
closely  approximating  our  own  cannot  fail  to  impress  the  American 
lawyer  with  the  universality  of  law  as  a  social  instrument  for  the 
adjustment  of  conflicting  interests. 

Another  phenomenon  of  the  nineteenth  century  was  the  impetus 
given  to  codification.  To  the  political  upheaval  incidental  to  the 
French  Revolution  and  the  eighteenth  century  philosophy  which 
dominated  it  and  to  the  ambition  of  Napoleon  to  unify  municipal 
law  in  France  the  world  owes,  if  not  the  first  modern  civil  code,  at 
least  the  most  influential  in  the  propagation  of  legal  institutions 
and  in  its  effect  on  legal  history.  Imposed  by  the  French  con- 
queror in  some  of  the  territories  which  fell  under  his  dominion, 
the  principal  migrations  of  the  code  to  foreign  countries  are 
attributable  to  the  general  admiration  of  the  Latin  world  for 
French  intellectual  supremacy  and  culture  and  the  desire  to 
achieve  order  and  unity  in  municipal  law.  The  French  civil 
code  was  perhaps  the  largest  single  factor  in  bringing  about  that 
approximation  or  internationalization  of  civil  law  witnessed  to- 
day in  such  a  considerable  part  of  the  world. 

With  its  many  advantages,  however,  it  involved  some  dis- 
advantages. Its  introduction  of  the  rationalistic  method  in 
legal  science,  its  disdain  of  legal  custom  as  a  product  of  the  un- 
conscious evolution  of  a  people,  its  failure  to  recognize  the  value 
of  court  decisions,  and  its  invitation  to  jurists  to  rely  solely  on 
the  exegetic  method  of  legal  interpretation,  are  faults  from  which 
continental  legal  science  has  suffered  and  from  which  it  has  only 
in  part  recovered.  Practically  all  the  other  countries  of  Europe 
have  enlisted  in  the  movement  for  codification,  all  profiting  by 
the  work  of  France  and  by  the  criticisms  revealed  by  experience 
and  study  there  and  abroad. 

And  here  we  find  the  beginning  of  the  comparative  method  in 
legal  science.  Incidental  to  a  selection  of  the  best  in  the  world's 
experience,  a  critical  comparison  in  the  light  of  current  economic 
and  social  factors  is  an  accepted  method  in  the  modern  legal 
development  of  legislation.  This  method  was  utilized  by  the 
draftsmen  of  the  principal  codes  following  the  French  —  the 
Italian  in  1865,  the  German  in  1896  and  the  Swiss  in  1907.     Each 

xxxvii 


INTRODUCTION 

of  these,  and  above  all  the  German  code,  has  made  its  contribu- 
tion to  the  evolution  of  law.  In  its  combination  of  the  historical 
and  scientific  method,  to  which  German  jurists  have  made  the 
ablest  contributions,  the  German  code  has  exercised  considerable 
influence  in  other  countries,  and,  not  least  of  all,  among  the 
modern  jurists  of  France.  Its  systematic  statement  of  a  nation's 
law  greatly  influenced  Eugen  Huber,  who  also  introduced  numer- 
ous improvements  upon  it  in  the  preparation  of  the  Swiss  code, 
notably  in  giving  greater  latitude  to  the  judge  and  in  a  greater 
socialization  of  legal  rules.  This  development  of  codification  and 
its  influence  in  continental  Europe  is  traced  in  valuable  essays 
by  Alvarez,  Perich,  Gaudemet,  and  Vanni. 

Commercial  law,  least  tinged  by  national  peculiarities,  has 
offered  less  resistance  to  uniformity  and  assimilation  than  other 
branches  of  the  law.  In  this  important  field,  whose  rules  have 
migrated  from  country  to  country  since  their  beginnings  in  Italy, 
France,  about  1850,  yielded  its  leadership  of  the  early  nineteenth 
century  to  Germany.  The  principles  of  the  German  Bills  of  Ex- 
change Act  have  practically  circled  the  globe  and  have  received 
the  endorsement  of  the  Hague  Bills  of  Exchange  Conference. 
While  the  draft  is  not  yet  fully  adopted,  the  insular  unwilling- 
ness of  English  law  to  surrender  its  own  peculiarities  and  the 
unfortunate  constitutional  position  of  the  States  of  the  United 
States  have  prevented  the  Anglo-American  system,  in  this,  as  in  so 
many  other  fields  of  legal  science,  from  joining  the  rest  of  the  world. 

Perhaps  the  most  striking  legal  phenomenon  of  the  nineteenth 
century  is  the  gradual  assimilation  of  law  throughout  the  world, 
an  inevitable  consequence  of  the  growing  contact  between  civilized 
nations.  The  constant  growth  in  international  intercourse,  with 
the  widening  substitution  of  the  doctrines  of  interdependence  for 
independence,  of  internationalism  for  nationalism,  has  manifested 
the  necessity,  in  the  interests  of  convenience  and  order,  for  a 
joint  regulation  of  mutual  interests.  This  has  taken  place  in 
various  ways  —  by  the  adoption  of  uniform  laws,  as  in  the  case 
of  bills  of  exchange,  by  the  observance  of  uniform  customs,  as  in 
the  York-Antwerp  rules  of  general  average,  and,  principally,  by 
international  agreements  governing  the  many  spheres  of  mutual 
interest  which  modern  economic  and  social  conditions  have 
created.  Public  administrative  unions  in  increasing  numbers 
have  been  organized  for  the  better  regulation  of  those  many 
economic  relations  which  the  extensive  intercourse  between 
nations  has  brought  in  its  train.       They  include  such   matters 

xxxv  iii 


INTRODUCTION 

as  the  post,  telegraph,  railway  transportation,  navigation,  patents, 
copyright  and  trademarks,  and  many  other  international  phases 
of  state  activity  described  in  the  illuminating  chapter  by  Reinsch. 

Not  the  least  important  contribution  to  the  movement  for  the 
assimilation  of  law  has  been  the  noteworthy  achievement  of  the 
Hague  conferences  on  private  international  law  in  providing  rules 
for  the  adjustment  of  the  conflict  of  laws  in  the  litigation  and 
adjudication  of  certain  classes  of  cases.  This  movement,  which 
has  made  an  auspicious  beginning,  is  traced  in  descriptive  outline 
by  the  Swiss  jurist,  Meili,  and  in  a  more  critical  analysis  by 
Simeon  E.  Baldwin,  one  of  our  foremost  constructive  jurists. 
There  is  no  reason  why  all  branches  of  the  conflict  of  laws  cannot 
be  satisfactorily  regulated,  and  Nippold's  contribution  consists 
in  emphasizing  the  practical  desirability  and  feasibility  of  assimila- 
tion in  all  matters  falling  within  what  he  calls  the  international 
"law  of  intercourse." 

To  all  students  of  law  in  its  wider  manifestations  as  a  universal 
science,  it  is  a  matter  of  regret  that  the  traditional  insularity  of 
the  United  States  and  its  constitutional  system  have  prevented 
it  from  contributing  its  fair  share  to  the  removal  of  obstacles 
fr.;m  the  facility  and  certainty  of  international  relations  in  the 
field  of  private  law.  An  analytical  study  of  the  methods  cf 
assimilation  of  law  and  a  c  instructive  criticism  of  our  own  share 
in  the  movement  is  the  contribution  of  Wigmore,  which  fittingly 
terminates  the  volume. 

The  American  lawyer,  impressed  with  the  necessity  of  finding 
remedies,  by  an  improvement  of  our  legal  methods,  for  the  in- 
efficiency in  our  administration  of  justice  and  the  resultant  eco- 
nomic waste  to  the  community,  will  find  valuable  food  for  thought 
and  profit  in  the  perusal  of  this  volume  and  its  predecessors. 
The  slavish  worship  of  a  countless  and  often  contradictory  myriad 
of  precedents,  without  regard  to  worth  or  source,  and  the  judicially 
tolerated  misuse  of  the  doctrine  of  "  stare  decisis  ",  have  brought 
about  a  chaos  and  an  uncertainty  in  our  law  which  must  give 
pause  to  the  student  who  contemplates  the  future.1  The  com- 
pelling necessity  for  a  more  scientific  system,  and  the  elimination 
of  the  intolerable  abuses  which  have  often  made  our  law  such  a 
poor  servant  of  justice,,  make  the  publication  of  these  volumes 
on  the  history  and  experience  of  more  mature  and  scientific  legal 
systems  a  striking  service  to  the  American  bar. 

1  See  article  in  64  "  Univ.  of  Penna.  Law  Review  "  (1916),  570. 

xxxix 


INTRODUCTION 
By  the  Right  Honorable  Sir  Frederick   Pollock,   Bart.1 

The  fundamental  differences  between  the  methods  of  the 
Common  Law  and  those  of  the  European  Continental  jurispru- 
dence are  by  this  time  well  known  to  historical  students.  It  is 
impossible,  however,  to  appreciate  any  Continental  treatment 
of  legal  doctrine  on  a  broad  scale,  be  it  historical  or  dogmatic, 
without  having  those  differences  freshly  present  to  one's  mind. 
Some  recapitulation,  therefore,  will  not  be  irrelevant  on  the  present 
occasion.  We  need  for  this  purpose  a  comprehensive  term  to  de- 
note the  great  body  of  learning  founded  on  the  study  and  applica- 
tion of  Roman  Law  in  European  communities  from  the  twelfth 
century  onwards  :  the  various  times  and  degrees  of  official  recep- 
tion will  not  concern  us.  The  old-fashioned  designation  of  Civil 
Law  will  serve  us  well  enough  if  we  remember  that  even  in  juris- 
dictions where  the  actual  text  of  the  Corpus  Juris  had  the  direct 
force  of  law  subject -to  more  or  less  of  customary  exception  and 
addition,  the  contents  of  the  Civil  Law  were  no  more  confined  to 
the  letter  of  the  Institutes,  Digest  and  Code  than  the  contents  of 
the  Common  Law  were  at  any  time  or  now  are  confined  to  the 
letter  of  constitutional  or  statutory  enactments. 

The  Common  Law  and  the  Civil  Law  are  alike  bodies  of  doc- 
trine which  is  in  the  main  unwritten  in  the  technical  sense  of  the 
term  ;  that  sense  denies  not  expression  in  writing  or  even  carefully 
studied  expression,  but  only  enactment  by  a  positive  authority. 
In  each  case  the  outcome,  in  matter  and  in  form,  is  the  fruit  of 
a  long  and  still  continuing  process  of  interpretation.  But  the 
methods  of  interpretation  are  diverse,  and  each  system  bears  the 
stamp  of  its  proper  method.  Common-law  learning  is  forensic 
in  its  origin,  civilian  learning  is  scholastic.  Not  that  English  law- 
yers were  untouched  by  speculation  or  Continental  doctors  di- 
vorced from  practice ;  nevertheless  the  diversity  is  substantial 
and  goes  pretty  deep.     We  proceed  to  trace  its  main  lines. 

1  [LL.  D. ;  Lincoln's  Inn,  London.  —  Ed.] 
xli 


INTRODUCTION 

As  early  as  the  thirteenth  century  the  Common  Law  of  England 
was  centralized  in  the  King's  Courts  at  Westminster.  It  was  the 
King's  law  spoken  by  his  judges,  and  there  and  from  them  only 
could  it  be  learnt,  for  there  was  no  other  school  or  master.  The 
service  of  the  courts  demanded  skilled  pleaders,  and  round  the 
courts,  in  the  course  of  two  or  three  generations,  a  learned  pro- 
fession arose  and  established  its  tradition,  a  tradition  whose  bent 
was  before  all  things  practical  and  forensic,  and  its  own  hostels 
and  schools.  English  universities  were  in  their  infancy  when  the 
Common  Law  was  born,  and  had  very  little  to  do  with  its  nurture ; 
they  were,  like  all  medieval  universities,  cosmopolitan  rather  than 
national ;  the  spiritual  and  intellectual  centres  they  looked  to  were 
Rome,  Bologna,  Paris.  Thus  the  law  was  made  at  Westminster  by 
the  judges,  working  on  material  prepared  for  them  by  their  juniors 
and  former  companions  of  the  Bar.  The  fact  that  in  England  we 
have  never  had  any  special  branch  of  the  profession  told  off  for  a 
judicial  career  cannot  be  dwelt  on  here,  but  is  significant.  Decision 
of  judges  answerable  to  the  King  and  the  lieges,  founded  on  the 
discussion  of  the  cause  by  advocates  answerable  to  their  clients 
and  eager  to  win  judicial  approval  — such  appeared  to  our  ancestors 
the  soundest  kind  of  building  for  a  house  of  justice  where  the 
King's  peace  should  be  supreme  and  the  rights  of  his  subjects 
reasonably  certain  and  assured. 

A  system  so  built  up  had,  undoubtedly,  one  drawback.  It 
was  long  before  it  could  have  a  literature,  and  when  books 
did  come,  as  distinguished  from  mere  collections  of  formulas 
and  notes  or  reports  of  decisions,1  they  could  take  only  a 
secondary  place.  This  was  settled  as  early  as  the  first  half  of 
the  thirteenth  century.  Henry  of  Bratton  wrote  the  first  sys- 
tematic English  law  book,  but  his  authentic  material,  as  Vino- 
gradoff  and  Maitland  have  taught  us,  was  in  the  rolls  of  the 
King's  Court.  He  went  to  the  Institutes  or  rather  Azo  for  a 
scientific  framework,  and  for  supplementary  matter  where  English 
authority  was  then  lacking ;  in  case  of  conflict  between  Roman 
learning  and  English  practice  he  never  had  a  moment's  doubt 
which  should  prevail.  Bracton's  Note  Book,  recovered  from  obliv- 
ion in  our  own  time,  is  the  herald  of  a  continuous  line,  the  line  of 
recorded  judicial  precedents  that  have  made  our  law.  The 
treatise  our  fathers  knew  as  Bracton  had  no  independent  successor 
till  the  eighteenth  century. 

1  Down  to  the  Restoration  English  lawyers,  when  they  spoke  of  "our 
books"  or  "the  books  ",  meant  the  Year  Books  and  such  other  reports  as 
were  current. 

xlii 


INTRODUCTION 

Thus  the  temper  and  opinions  which  prevailed  from  time  to 
time  in  the  social,  political  and  economic  life  of  the  commonwealth 
were  brought  to  bear  upon  the  development  of  the  law  not  by 
learned  writings  or  codes,  but  through  the  judicial  utterances  of  the 
Courts,  consciously  or  unconsciously  taking  their  point  of  view 
from  their  surroundings.  Every  one  who  is  familiar  with  the  re- 
ports of  the  first  three  quarters  of  the  nineteenth  century  must  have 
observed  how  the  English  judges  were  saturated  with  individualist 
economic  doctrine,  and  have  noted  the  effects  of  that  frame  of  mind 
on  our  nineteenth  century  case-law,  some  of  which  appears  to  us 
at  this  day  good,  and  some,  to  an  increasing  number  of  us,  bad. 
Text-writers,  as  a  rule,  were  content  to  set  down  the  results  without 
any  discussion,  or  only  with  more  or  less  discussion  of  a  purely 
technical  kind. 

Bentham,  we  may  note  in  passing,  is  not  in  the  regular  line 
of  text-writers  at  all.  He  was  a  deliberate  innovator,  not  an 
expounder ;  in  the  course  of  the  following  generation  his  revolu- 
tionary genius  created  a  new  atmosphere.1 

Again,  the  commanding  and  independent  position  of  the 
King's  judges  enabled  them  to  exercise  great  freedom  not  only 
in  the  development  of  purely  unwritten  doctrine  but  in  the  con- 
struction of  parliamentary  enactments,  and  this  from  the  very 
first.  Indeed  the  Justices  of  Edward  I  and  Edward  II  achieved 
feats  in  this  kind  which  none  of  their  successors  have  dared  to 
emulate.  One  may  doubt  whether  they  would  have  accepted  the 
modern  formula  that  the  courts  have  no  power  to  make  law.  As  to 
this,  there  has  been  of  late  years  a  remarkable  and  seemingly  quite 
independent  movement  among  Continental  jurists  in  the  direction 
of  the  Common  Law  view.  The  Swiss  Civil  Code  expressly  di- 
rects the  judge  to  exercise  a  quasi-legislative  function  in  the  ab- 
sence of  any  applicable  provision  of  enacted  or  customary  law 
(p.  283,  post).  But  it  must  be  remembered  that,  according  to 
the  general  Continental  practice,  a  decision  so  made  will  be  no 
more  binding  than  any  other  decision  upon  other  Courts  of  in- 
ferior or  co-ordinate  jurisdiction,  or  even  in  the  same  court  in 
subsequent  cases. 

Our  system  has  another  point  of  singular  historical  felicity,  so 
much  a  part  of  its  intimate  being  that  only  long  familiarity  can 

1  The  election  of  Bentham  as  a  Bencher  of  Lincoln's  Inn  (1817,  Black 
Books  of  Lincoln's  Inn,  iv.  147)  should  give  pause  to  those  who  assume 
that  the  governing  bodies  of  the  Inns  of  Court  are  always  ultra-conserva- 
tive. One  may  doubt  whether,  at  the  time,  a  general  vote  of  the  Bar, 
or  the  members  of  the  Inn,  would  have  been  so  liberal. 

xliii 


INTRODUCTION 

bring  full  understanding  of  it.  Judicial  authority  belongs  not  to 
the  exact  words  used  in  this  or  that  judgment,  nor  even  to  all  the 
reasons  given,  but  only  to  the  principles  recognized  and  applied  as 
necessary  grounds  for  the  decision.  Therefore  it  has  never  been 
possible  for  the  courts  to  impose  dogmatic  formulas  on  the  Com- 
mon Law,  and  the  efforts  of  text-writers  to  bind  it  in  fetters  of 
verbal  definition  have  been  constantly  and  for  the  most  part  happily 
frustrated  by  the  reconsideration  and  restatement  of  guiding  prin- 
ciples in  the  judgments  of  the  highest  tribunals.  Again  and  again 
we  have  escaped,  even  by  a  hair's  breadth,  from  being  committed 
to  obsolete  or  decaying  speculative  doctrine.  A  reader  of  nine- 
teenth-century text-books  might  well  think  we  had  officially 
adopted  the  "fiction"  theory  of  corporations  (bound  up,  on  the 
Continent,  with  the  singular  jealousy  of  corporations  and  private 
associations  and  foundations  which  the  civilians  took  over  from 
Roman  imperial  jurisprudence,  and  from  which  their  successors 
are  now  emancipating  themselves ;  but  our  text-writers  understood 
nothing  of  this1).  Closer  examination  proves,  and  I  venture  to 
think  the  proof  conclusive,  that  we  are  not  bound  to  that  or  any 
other  theory.  The  books  tell  us  just  as  much  as  it  is  their  office 
to  tell  us,  namely,  what  are  the  statutory  or  common-law  tests  of 
capacity  to  sue  and  be  sued  in  a  corporate  name,  and  in  what 
ways  the  legal  activities  and  responsibilities  of  a  corporation  may 
differ  in  kind  and  degree  from  those  of  a  natural  person.  So,  too, 
there  have  been  currents  of  authority  now  setting  towards  indi- 
vidualism, now  controlling  it  in  the  name  of  public  policy,  but  the 
Common  Law  as  a  whole  refuses  to  be  fixed  either  May. 

Let  us  now  turn  to  the  formation  of  Continental  doctrine,  and 
we  shall  find  a  wholly  different  set  of  conditions.  The  medieval 
revival  of  Roman  law  was  not  directed  from  any  one  centre. 
Jurisdiction  and  doctrine  were  alike  dispersed  in  many  courts 
and  many  universities,  none  of  them  exercising  positive  authority 
beyond  its  own  bounds ;  and  those  bounds  were  provincial  rather 
than  national.  It  was  therefore  impossible  that  anything  like  a 
unitary  source  of  authority  should  be  acknowledged.  The  su- 
premacy of  the  Holy  Roman  Empire  was  a  thing  of  parchment 
and  ink ;  it  is  enough  to  say  that  it  was  not  admitted  in  France 
at  any  time  after  the  tenth  century.  Thus  the  only  practicable 
outcome  was  a  ground  work  of  doctrinal  ideas,  an  inchoate  philos- 

1  Down  to  a  time  well  within  my  own  memory  the  greater  part  of 
English  lawyers  were  incapable  of  touching  Roman  law,  ancient  or  modern, 
without  some  display'  of  incompetence.  Extraordinary  blunders  in  the 
simplest  citations  occur  in  modern  reports  of  quite  good  general  repute. 

xliv 


INTRODUCTION 

ophy  of  law  rather  than  a  body  of  law,  postulated  with  more  or  less 
efficacy  as  common  to  the  various  jurisdictions.  One  point  we  have 
to  remember  as  of  vital  importance  is  that  the  universities  were 
teaching  the  same  kind  of  law  that  the  courts  administered,  some- 
what as  American  law  schools  at  this  day  teach  the  Common  Law, 
leaving  the  practitioner  to  work  out  the  application  as  modified 
by  the  legislation  and  decisions  of  his  particular  State.  This  was 
quite  contrary  to  the  state  of  things  in  England,  and  the  con- 
sequences were  far-reaching. 

At  the  same  time  there  was  one  juridical  system  which  at 
an  early  date  attained  a  high  degree  both  of  refined  learning 
and  of  centralized  authority,  that  of  the  Canon  Law.  The  re- 
lations of  canonists  and  civilians  were  by  no  means  uniformly 
harmonious,  but  even  in  controversy  the  more  ancient  and 
regular  official  doctrine  of  the  Roman  Curia  could  not  fail  to 
leave  its  mark.  So  far  as  Roman  influence  can  be  traced  in 
English  law,  we  have  now  learnt  to  seek  its  origin  in  canonical 
rather  than  secular  jurisprudence.  But  it  is  not  for  us  here,  even 
if  it  were  within  the  competence  of  an  English  lawyer,  to  appraise 
the  part  of  the  canonists  in  consolidating  the  great  fabric  of  learn- 
ing and  speculation  which  furnished  the  materials  not  only  for 
Continental  codes  but  for  the  modern  law  of  nations.  Let  us 
suffice  to  note  that  it  was  a  very  considerable  part. 

If  the  circumstances  had  otherwise  been  more  favourable  to  the 
growth  of  any  judicial  authority  claiming  to  stand  even  on  an 
equal  footing  with  academic  learning,  the  tradition  of  classical 
Roman  law  would  still  have  outweighed  them.  Under  the  republic, 
and  for  a  long  time  under  the  empire,  the  judge  was  an  unofficial 
layman,  and  as  sharply  distinguished  from  the  learned  advocate 
and  counsellor  as  jurymen  from  judges  in  our  own  system.  A 
function  of  scientific  development  analogous  to  that  of  our  case- 
law  was  performed  by  the  opinions  of  leading  lawyers,  embodied 
from  time  to  time  in  the  Praetor's  edict.  The  business  of  learned 
men  was  not  to  analyze  and  systematize  the  decisions  of  courts, 
but  to  lay  down  the  law  which  the  courts  had  to  apply.1  It  is 
true  that  the  Emperor  himself  was,  in  the  last  resort,  the  supreme 
judge,  and  his  decisions,  given  of  course  with  the  best    learned 

1  We  do  not  stop  to  mention  the  official  authority  of  the  responsa 
prudentium.  That  belongs  to  the  technical  history  of  the  classical 
Roman  law,  and  an  account  of  it  may  be  found  in  any  good  manual. 
It  is  remarkable  that  Gibbon,  when  he  wrote  his  44th  chapter,  was  so 
thoroughly  imbued  with  civilian  ideas  as  to  assume  the  insignificance  of 
the  judge  without  calling  attention  to  it. 

xlv 


INTRODUCTION 

assistance,  made  law,  but  this  was  inevitable  when  the  appellate 
judge  was  also  the  supreme  legislator  and  expounder.  Thus  the 
revived  study  of  Roman  law  in  the  Middle  Ages  was  provided  from 
the  outset  with  a  literary  and  scholastic  tradition  ready  to  be  taken 
up  by  the  universities  and  become  academic.  Only  one  partial 
analogy,  so  far  as  I  know,  may  be  found  in  English  jurisprudence, 
and  that  in  a  very  special  branch  of  it ;  I  mean  the  respect  which 
our  courts  openly  accord  to  the  published  opinions  and  current 
practice  of  learned  conveyancers  concerning  questions  in  the  law 
of  real  property.  Yet  those  very  writers,  almost  until  our  own 
time,  offered  lip-service  to  judicial  authority  in  terms  of  all  but 
slavish  humbleness. 

On  the  whole,  then,  the  civilian  order  of  thought  with  re- 
gard to  the  development  of  legal  science  is  the  reverse  of  ours. 
Learned  opinion,  a  body  of  opinion  in  which  professional  and 
academic  elements  are  intimately  combined,  leads  the  way. 
Practice  and  legislation  give  effect  to  conclusions  derived  from 
the  received  doctrine  of  learned  authors,  or  in  case  of  doubt 
those  views  are  followed  which  appear  to  be  the  better  sup- 
ported. Judicial  decision,  as  such,  has  no  positive  authority 
beyond  its  immediate  effect.  If  and  so  far  as  judicial  utterances 
are  expressions  of  learned  reason,  they  are  esteemed  according  to 
the  repute  of  their  authors  and  not  otherwise. 

The  foregoing  general  statement  is  intended  to  be,  and  I  be- 
lieve is,  a  tolerably  correct  account  of  a  guiding  habit  of  mind; 
it  is  not  intended  to  be  applicable  in  detail  without  caution. 
If  anything  is  axiomatic  in  medieval  history,  it  is  that  we  find 
exceptions  and  anomalies  at  every  turn  as  soon  as  we  go  below 
the  surface.  It  would  be  as  absurd  to  suppose  that  courts  and 
judges  count  for  nothing  in  Continental  jurisprudence,  at  any 
stage,  as  to  suppose  that  the  private  writings  of  learned 
persons  count  for  nothing  in  the  common  law.  Wherever  the 
judicial  office  is  in  the  hands  of  experts  working  on  a  regular 
method,  and  whatever  the  relations  of  those  experts  to  the 
practising  legal  profession  may  be,  the  contribution  of  the 
courts  to  legal  science  must  be  material.  This  tendency  becomes 
marked  in  proportion  as  legal  and  other  public  institutions  acquire 
a  really  national  character.  In  France,  where  the  mixed  political 
and  judicial  functions  of  the  parliaments  conferred  a  peculiar  im- 
portance on  the  magistrature,  it  was  very  strong  after  the  sixteenth 
century.  Pothier,  who  holds  the  foremost  place  among  the 
fathers  of  modern  French  law,  and  much  of  whose  work  is  literally 

xlvi 


INTRODUCTION 

or  all  but  literally  embodied  in  the  Codes,  had  a  long  judicial 
career  at  Orleans. 

Yet  it  remains  true  that  the  authority  of  Pothier's  writ- 
ings did  not  depend  on  his  position.  In  modern  French  com- 
mentaries the  reported  decisions  both  of  French  courts  and  of 
Belgian  and  other  foreign  tribunals  administering  codes  of  the 
French  model  are  freely  cited  ;  but  they  are  not  treated  as  having 
more  than  persuasive  authority  even  in  their  own  jurisdiction, 
except  where  a  uniform  course  of  decision  has  thoroughly  settled 
the  practice  ("jurisprudence  constante");  nor  are  they  held 
entitled  in  themselves  to  greater  weight  than  the  conclusions  of 
the  leading  text-writers. 

In  the  main,  after  all  just  allowances,  our  fundamental  antith- 
esis holds.  Doctrinal  opinions  of  writers  may  acquire  authority 
in  the  Common  Law  when  and  so  far  as  the  Courts  adopt  them. 
Judicial  decisions  and  reasons  may  acquire  authority  (not  exactly 
the  same  kind  of  authority)  in  the  modern  civil  law  when  and  so 
far  as  they  are  received  into  the  body  of  recognized  learned 
opinion.  In  either  case  this  process  has  been  especially  frequent 
and  operative  during  the  past  century,  and  to  that  extent  Common 
Law  students  and  civilians  are  now  more  favourably  situated  for 
appreciating  one  another's  methods. 

Legislation,  being  the  act  of  sovereign  political  authority,  can- 
not be  expected  to  bear  the  marks  of  a  prevailing  school  or  method 
of  legal  science  to  the  same  extent  as  either  judicial  decisions  or 
professional  literature.  Yet  we  may  note  that  European  Conti- 
nental lawgivers  have  been  more  in  touch  with  scientific  jurispru- 
dence than  English-speaking  legislatures.  They  have  consoli- 
dated the  results  of  technical  learning  on  a  larger  and  bolder 
scale  x ;  they  have  been  less  prone  to  make  particular  innovations 
without  regard  to  their  effect  on  the  body  of  the  law ;  they  have 
spoken  in  the  language  of  expositors  who  count  on  being  reason- 
ably understood  and  are  not  astute  to  guard  against  perverse  mis- 
construction. It  has  been  observed  somewhere  that  if  an  English- 
speaking  lawyer  wants  to  enter  into  the  spirit  of  the  French  Code 
Civil,  he  should  begin  by  regarding  it  not  as  a  codifying  statute  in 
our  English  sense  but  rather  as  a  book  of  concise  Institutes.  It 
may  seem  a  reproach,  to  a  mind  entangled  in  insular  prejudices, 
to  say  that  the  Continental  legislator  is  something  of  a    pro- 

1  In  commercial  law,  however,  great  advances  have  been  made  through- 
out English-speaking  countries  and  in  British  India.  Unfortunately  Parlia- 
ment and  the  Government  of  India  have  more  than  once  codified  the  same 
law  in  different  forms,  and  there  is  no  immediate  prospect  of  uniformity. 

xlvii 


INTRODUCTION 

fessor ;  in  truth  it  is  a  commendation,  and  if  any  censure  is  im- 
plied it  is  for  our  own  uncouth  and  disorderly  verbosity,  which 
gives  more  occasion  for  captious  disputes  than  it  removes,  and 
makes  our  written  laws  a  hopeless  riddle  to  the  citizens  who  have 
to  obey  them.  The  best  that  can  be  said  for  our  desultory  fashion 
of  statute-making  is  that  it  avoids  the  danger  of  premature 
definition  and  of  stereotyping  dogmatic  opinions  already  in  their 
decline.  But  it.  is  far  from  certain  that  even  so  much  negative 
virtue  can  always  be  counted  upon.  There  is  no  effective  reply 
to  the  charge  that  our  legislation  is  too  much  under  merely  politi- 
cal control ;  and  it  is  at  least  doubtful  whether  the  substitution 
of  direct  popular  control,  as  advocated  and  to  some  extent  prac- 
tised in  some  American  jurisdictions,  is  likely  to  be  an  improvement. 

It  would  be  rash  to  express  any  confident  opinion  about  the 
general  trend  of  European  Continental  speculation,  and  its  prob- 
able continuing  effect,  so  far  as  disclosed  by  the  chapters  trans- 
lated in  the  present  volume.  Evidently  we  are  living  in  a  period 
of  wide-spread  reaction  against  the  individualist  bent  of  the 
eighteenth  and  early  nineteenth  centuries,  which  found  ample 
congenial  matter  in  the  classical  Roman  jurists.  Throughout 
the  civilized  world  the  pressure  of  social  needs  is  increasing  the 
active  functions  of  the  State  and  discrediting  hard  and  fast 
theoretical  limitations  of  its  control  over  particular  interests.  So 
far  from  the  common  power  being  relegated  to  merely  administra- 
tive duties,  public  law  is  everywhere  growing  at  the  expense  of 
private  law.  At  this  day  a  fresh  impulse  in  the  same  direction, 
whose  effects  will  not  cease  with  the  cessation  of  hostilities,  is 
given  by  the  prevailing  war  conditions.  As  I  write  we  see  the 
President  of  the  United  States,  for  the  second  time  within  living 
memory,  invested  with  all  but  a  dictator's  war  power.  The 
liberty  of  the  subject  is  good  in  time  of  peace,  but  must  give  place 
when  the  free  peoples  of  the  earth  are  fighting  for  their  very  life 
and  liberty  against  the  most  wicked  and  relentless  despotism  that 
ever  set  out  on  the  adventure  of  subduing  all  things  to  its  evil  will. 

Partly  for  the  same  reason,  partly  because  at  the  close  of  the  war 
several  juridical  and  constitutional  problems  of  the  first  impor- 
tance will  demand  attention,  it  must  now  be  long  before  schemes 
for  the  assimilation  of  commercial  law,  such  as  are  recorded  in  the 
latter  part  of  the  present  volume,  can  be  resumed  or  prosecuted 
with  effect.  In  fact,  the  topics  that  have  hitherto  employed  • 
cosmopolitan  associations  and  congresses  fall  now  into  two  classes  : 
those  which  must  be  dealt  with  by  more  authoritative  methods 

xlviii 


INTRODUCTION 

(though  the  business  will  be  neither  quick  nor  easy)  and  those 
which  have  to  stand  over  for  a  while. 

Yet  no  man  can  tell  how  near  a  present  world-movement  may  be 
to  its  height,  or  whither  the  next  deflection  may  tend.  From 
history,  at  any  rate,  we  may  learn  to  be  cautious  in  prophesying. 
We  may  be  sure  that  the  old  individualism  will  not  be  restored 
in  anything  like  its  old  form  ;  and  we  cannot  be  sure  that  the  last 
word  is  with  any  of  the  competing  doctrines  which  agree  in  repudiat- 
ing it,  but  diverge  widely  in  other  respects.  About  fifty  years  ago 
the  triumph  of  individualist  doctrine  appeared  to  the  best  ob- 
servers to  be  complete.  Maine  had  set  the  seal  to  it  by  a  brilliant 
aphorism  (whatever  may  have  been  the  bounds  of  the  application 
intended  by  himself),  and  the  word  went  forth  that  civilization  was 
moving  from  Status  to  Contract.  In  point  of  fact  the  climax  was 
then  already  past,  and  Maine  himself  was  forging  weapons  to  be 
used  in  ousting  the  secure  masters  of  the  dominant  school  from 
their  strongholds.  It  was  not  without  cause  that  he  met  with  a 
pretty  cold  reception  at  the  hands  of  J.  S.  Mill's  disciples,  perhaps 
more  consistent  herein  than  their  master,  whose  own  orthodoxy 
was  not  unblemished.  The  stubborn  remnant  of  that  school  may 
console  itself,  if  it  can,  with  the  reflection  that  the  newer  teaching 
now  in  vogue  may  prove  not  much  more  adequate  to  cope  with 
the  problems  of  a  world  which,  for  better  or  worse,  will  be  trans- 
formed when  it  stands  clear  of  the  present  confusion. 

Meanwhile,  even  in  pure  politics,  invention  born  of  necessity  is 
at  work.  For  several  months  the  resources  of  the  British  Empire 
have  been  wielded  by  an  executive  not  capable  of  description  in 
the  terms  of  any  received  constitutional  theory.  The  War  Cabi- 
net includes  members  from  overseas  —  not  assessors  but  full 
members  —  who  are  not  answerable  to  the  British  Parliament. 
While  we  are  still  debating  how  to  call  the  Dominions  to  our 
councils,  they  are  summoned  to  an  active  share  in  command. 
Modern  parliamentary  government  was  supposed  to  involve,  as  a 
necessary  element,  the  collective  and  undivided  responsibility  of 
Ministers  to  the  House  of  Commons.  That  rule  is  in  abeyance, 
and  for  the  conduct  of  imperial  affairs,  at  any  rate,  we  shall  hardly 
see  it  revived. 

Whatever  cosmopolitan  developments  of  political  and  legal  ideas 
are  in  store  for  our  children,  it  is  certain  that  the  thought  and 
action  of  the  rulers  of  men  in  English-speaking  lands  will  have  a 
far  greater  part  in  shaping  them  than  could  have  been  foreseen  a 
few  years  ago. 

xlix 


THE  PROGRESS 

OF  CONTINENTAL  LAW 

IN  THE  NINETEENTH  CENTURY 


Part  I 


THE  MOVEMENT  FOR 

THE  READJUSTMENT  OF  LAW  TO 

CHANGED  SOCIAL  AND  POLITICAL  CONDITIONS 


Chaptek  I.    Dominant  Legal  Ideas  in  the  First  Half  of 
the  Century  after  the  French  Revolution. 

Chapter  II.    Dominant  Influences  Towards  Legal  Change 
in  the  Second  Half  of  the  Century. 

Chapter  III.     Changes  of  Principle  in  the  Field  of  Liberty, 
Contract,  Liability,  and  Property. 

Chapter  IV.    Changes  of  Principle  in  the  Field  of  Family 
and  Persons. 


Chap.   I] 


DOMINANT   IDEAS   TO    1850 


[§1 


Chapter  I 

DOMINANT  LEGAL  IDEAS 

IN  THE  FIRST  HALF  OF  THE  CENTURY 

AFTER  THE   FRENCH   REVOLUTION 

By  Alexander  Alvarez  1 


§  1.  Influence  of  the  Philosophy  of 
the  1700  s  upon  the  Law  of 
the  French  Revolution. 

§  2.  Influence  of  the  Philosophy 
and  the  Economics  of  the 
1700  s  upon  the  Napoleonic 
Codes. 

§  3.     The  Postulates  underlying  the 


Napoleonic  Codes. 

§  4.  The  Dominant  Ideas  in  Prop- 
erty Law  and  Family  Law. 

§  5.  Social  Influence  of  the  Code 
Napoleon. 

§  6.  Influence  upon  Legal  Science 
in  general. 


§  1.  Influence  of  the  Philosophy  of  the  1700  s  upon  the  Law  of 
the  French  Revolution.  — A  characteristic  of  the  1700  s  in  France 
was  the  development  of  the  philosophical  spirit,  —  the  classical 
mind.  There  were  many  causes.2  Society  was  at  that  time 
searching  for  principles  that  would  permit  of  a  reorganization 

1  [This  Chapter  is  from  pages  3-47  of  the  author's  "Une  nouvelle  con- 
ception des  etudes  juridiques  et  de  la  codification  du  droit  civil"  (Paris, 
1904,  F.  Pichon  and  Durand-Azias,  Librairie  generale  de  droit  et  de  juris- 
prudence, being  Vol.  IX  of  the  "  Bibliotheque  international  del'enseigne- 
ment  superieure",  edited  by  F.  Picavet. 

M.  Alvarez  is  a  doctor  of  law  of  the  Faculty  of  Paris  and  graduate  of 
the  "Ecole  des  sciences  politiques."  He  is  a  member  of  the  Curatorium 
of  the  Academy  of  International  Law  at  The  Hague,  established  with  the 
cooperation  of  the  Carnegie  Endowment  for  International  Peace.  He  is 
also  Counselor  to  the  Legations  of  Chile ;  member  of  the  Permanent 
Court  of  Arbitration ;  delegate  to  the  Fourth  Pan-American  Conference ; 
former  Professor  of  Comparative  Law  at  the  University  of  Santiago ; 
associate  of  the  Institute  of  International  Law ;  Secretary-General  of  the 
American  Institute  of  International  Law. 

Among  his  other  important  works  are  the  following,  on  topics  related 
to  the  present :  "De  l'influence  des  phenomenes  politiques,  economiques, 
et  sociaux  dans  l'organisation  de  la  famille  moderne"  (Paris,  1899)  ; 
"Latin-America  and  International  Law"  (American  Journal  of  Inter- 
national Law,  III,  209-353) ;  "Le  droit  international  Americain"  (Paris, 
1910). 

The  remaining  chapters  of  this  author's  book  "Une  nouvelle  concep- 
tion", etc  are  translated  in  Vol.  IX  of  the  Modern  Legal  Philosophy  Series, 
"The  Science  of  Legal  Method"  (Boston,  1917)  ;  they  deal  with  the  meth- 
ods of  codification  and  judicial  decision.  —  En.] 

-J.  E.  M.  Portalis,  "De  l'usage  et  de  l'abus  de  l'esprit  philosophique 
durant  le  XVIIIe  siecle"  (3d  ed.,  Paris,  1834),  chaps,  i-ix. 


§  1]  PART    I      READJUSTMENT   OF    LAW  [Chap.    I 

upon  new  foundations.  Philosophy,  therefore,  became  social; 
every  philosopher  was  duplicated  as  a  publicist.  Moreover, 
economists  of  the  period  were  studying  political  economy  and  law 
together.1  For  these  reasons  the  doctrines  of  the  philosophers 
and  economists  of  the  1700  s  exercised  a  considerable  influence 
upon  the  law  of  the  succeeding  period. 

(1)  A  Natural  Order  Governing  Society.  —  All  were  imbued 
with  the  earlier  idea  of  natural  law,  and  this  they  strengthened  and 
developed.  They  believed  too  —  and  here  they  were  pioneers  — 
that  society  was  governed  by  a  natural  order  and  that  the  rule  of 
its  operation  must  be  discovered.  The  economists  accepted  this 
natural  order  as  the  point  of  departure  of  their  speculations;  for 
them  the  whole  of  political  economy  was  reducible  to  the  mere 
determination  of  the  laws  inevitably  regulating  the  entire  body  of 
economic  facts,  independent  of  all  considerations  of  time  and  space. 

The  philosophers  also  set  out  from  the  same  idea  of  a  natural 
order.  It  can  be  found  beneath  all  their  speculation.  Montes- 
quieu applied  himself  to  the  study  of  history  and  law  in  order 
to  extract  a  philosophy  from  them.  In  like  maimer  Condorcet 
searched  for  the  philosophy  of  history,  and  having  observed  the 
past  evolution  of  society,  he  believed  in  its  indefinite  progress. 
Diderot  and  d'Alembert  attempted  a  synthesis  of  human  knowl- 
edge. Their  method  of  investigation  harmonized  with  the  idea  of 
a  natural  order  and  with  the  social  conditions  of  the  period.  It 
combined,  in  varying  degrees,  observation,  reason,  and  idealism. 

The  philosophers  were  students  of  ancient  and  modern  times ; 
but  they  also  observed  the  society  in  which  they  lived ;  and  this 
examination  was,  indeed,  the  distinctive  feature  of  their  doctrine. 
But  the  starting  point  of  the  speculations  by  which  they  aimed  to 
realize  a  social  ideal  was  not  observation.  They  began  with  an  "  a 
priori  "  conception  of  society  and  human  nature.  Their  method 
led  them  to  reject  the  past  and  to  believe  that,  far  from  being  the 
parent  of  the  future,  it  obstructed  its  realization.  Hence,  in  their 
minds,  the  annihilation  of  the  past  became  the  very  condition  of 
progress,  and  they  counted  in  everything  upon  a  future  which  was 
to  realize  the  concepts  of  reason. 

Reason  was  omnipotent  to  them.  It  seemed  able  to  accomplish 
whatever  it  could  conceive;  to  Reason  alone  they  turned  for  the 
social  reorganization  of  which  they  dreamed.     They  were  revolu- 

1  Turgol  was  the  first  at  that  time  to  separate  the  study  of  political 
economy  from  that  of  law.  Cf.  fossa,  "Histoire  des  doctrines  economi- 
ques"  (Pr.  trans.,  Paris,  1899),  p.  278. 

4 


Chap.    I]  DOMINANT  IDEAS  TO    1850  [§  1 

tionists,  desiring  a  new  society  reconstructed  upon  new  and  purely 
rational  principles.  Their  doctrine  thus  assumed  dogmatic  ten- 
dencies, and  rose  to  a  religion. 

The  social  philosophy  of  the  1700s  strove  to  set  up  an  idea 
which  had  inspired  it :  individualism,  that  is,  the  greatest  possible 
liberty  in  the  individual.1  Their  individualism  was  evolved  out 
of  a  rational  speculation  that  was  hostile  to  the  political  and  eco- 
nomic conditions  of  the  time.  The  chief  characteristics  of  the 
period  were  royal  despotism  ;  inequality  in  the  status  of  persons  and 
in  land  ownership  ;  obstacles  to  industrial  freedom,  commerce,  and 
industry;  oppressive  taxation;  and  the  mercantilist  and  pro- 
tectionist theories.  This  individualism,  we  should  note,  was  not 
opposed  to  State  interference.  On  the  contrary,  the  latter's 
influence  was  to  be  exercised  in  order  the  better  to  insure  the 
development  of  the  faculties  of  the  individual. 

(2)  The  Individual  and  Property  the  Bases  of  Law.  —  The  juridi- 
cal ideas  of  the  philosophers  and  economists  were  in  accord  with 
individualism 'and  the  rationalistic  and  idealistic  method. 

The  conception  of  the  individual  and  of  the  right  of  property 
were  at  the  basis  of  social  reorganization,  they  believed.  Man 
was  always  imagined  living  isolated,  without  relation  to  his  fellow 
beings,  and  enjoying,  in  a  state  of  nature,  an  almost  absolute  liberty. 
Human  relations  existed  only  by  the  will  of  individuals,  not  by 
virtue  of  ties  uniting  them  to  one  another.  They  attributed  great 
importance  to  life  in  society,  and  reached  no  less  a  conclusion  than 
that  the  final  object  of  society  was  the  individual.  Hence,  respect 
for  man  as  a  person,  that  is  to  say,  for  the  rights  of  the  individual 
and  of  property,  was  the  component  but  sole  rational  basis  of  law, 
and  its  guarantee  the  supreme  aim  of  legislation. 

Lastly,  they  declared  that  legislation  must  be  the  sole  source  of 
positive  law  and  should  normally  govern  society.  Statutory  law 
was  merely  human  reason  made  concrete  in  the  particular  hypoth- 
esis under  consideration.2  It  ought,  therefore,  to  be  uniform, 
simple,  inspired  by  rationalistic  principles,  and  expressed  in  concise 
formulae.3 

1  For  the  manner  in  which  individualism  is  illustrated  in  the  doctrine 
of  these  philosophers  and  economists,  Henri  Michel,  "L'idee  de  l'Etat" 
(Paris,  1896),  introd.,  pp.  30-89. 

2  Rousseau,  "Contrat  social",  bk.  II,  chap,  xi ;  Montesquieu,  "De 
l'esprit  des  lois  ",  bk.  I,  chap.  in. 

Mably,  it  is  true,  protested  against  the  idea  that  legislation  should  be 
expressed  in  "majestic  brevity"  ;  "  De  la  legislation  ou  principes  des  lois  ", 
in  "Collection  complete  des  CEuvres  de  l'abbe  Mably"  (Paris,  1794- 
1795),  Vol.  IX,  p.  296. 

5 


§   1]  PART    I      READJUSTMENT    OF    LAW  [Chap.    I 

(3)  Public  and  Private  Law.  — ■  They  distinguished  in  their 
doctrine  between  public  and  private  law.  The  former  was  the 
principal  and  almost  the  exclusive  subject  of  their  interest,  —  a 
fact  explained  by  the  political  and  social  conditions  of  the  period. 
Private  law  was  dealt  with  more  particularly  by  the  economists. 
In  public  law,  the  publicist-philosophers  desired  to  reconstruct 
society  upon  bases  that  were  entirely  new,  in  the  sense  that  they 
were  to  be  derived  from  pure  reason.  These  new  foundations, 
which  they  formulated  with  great  precision,  were  the  unrestricted 
and  private  right  of  property,  the  guarantee  of  the  rights  of  man, 
the  sovereignty  of  the  people,  and  the  separation  of  the  powers  of 
government.  To  reconstruct  society,  they  invoked  the  interests 
of  the  people  as  a  whole,  but  this  general  interest  was  itself  safe- 
guarded only  so  long  as  the  individual  enjoyed  all  the  rights 
inherent  in  his  person. 

When  the  philosophers  approached  the  problems  of  private  law, 
they  reasoned  somewhat  differently.  Liberty  of  the  individual 
was  still  the  ideal  towards  which  law  should  strive ;  but  it  did  not 
seem  to  them  that  man  could  act  save  as  moved  by  his  own  interest 
rather  than  by  social  interest.  Private  law,  therefore,  had  to 
formulate  rules  by  which  the  liberty  of  each  could  co-exist  with  the 
liberty  of  all.  This  they  called  the  relationship  of  co-existing 
individuals.  The  legislator,  consequently,  was  not  obliged  to 
weigh  the  degree  of  morality  of  each  person's  acts.  It  sufficed 
that  the  liberty  of  another  was  not  to  suffer  by  them. 

In  this  the  philosophers  were  less  hostile  to  traditional  doctrine 
and  did  not  pretend  to  create  private  law  at  a  stroke.  Roman, 
canon,  and  feudal  law  seemed  antiquated  to  them  ;  but  customary 
law,  which  appeared  more  inspired  by  present  social  needs,  found 
favor  in  their  eyes.  In  this  they  were  not  in  agreement  with  the 
legists  (or  professors  of  the  Roman  civil  law)  who  remained  faithful 
to  the  whole  body  of  early  legislation.  On  the  other  hand,  like  the 
latter  class,  they  believed  that  the  advantage  of  codification  would 
be  to  introduce  unity  of  legislation  throughout  the  realm.1 

Though  they  formulated  the  rules  which  were  to  guide  the  legis- 
lator at  his  task,2  they  were  not  concerned  as  to  how  law,  once 
crystallized  into  texts,  was  to  adjust  itself  to  the  new  necessities  of 
a  social  state,  forever  undergoing  change.     They  were,  however, 

1  Voltaire,  "Dietionnaire  philosophique"  (ed.  Gamier),  Vol.  ITT,  pp. 
614,  619,  and  626.    Cf.  Diderot,  "  (Euvres  completes"  (ed.  Gamier),  Vol.  IV. 

2  Montesquieu,  op.  cit.,  bk.  XXIX,  chaps,  xvi-xix  ;  cf.  Mably,  op.  cit., 
Vol.  IX,  bk.  Ill,  chap.  in. 

6 


Chap.    I]  DOMINANT  IDEAS   TO    1850  [§  1 

herein  consistent.  According  to  their  view,  legislative  enactments 
were  the  sole  rules  of  society,  and  thus  need  not  be  concerned 
over  the  inevitable  transformations  which  society  might  have  to 
undergo. 

(4)  Revolutionary  Efforts  at  Codification.  —  The  Revolutionists 
were  deeply  imbued  with  the  ideas  of  the  philosophers  and  econo- 
mists of  the  1700  s.  They  were  unanimous  with  the  latter  in  be- 
lieving that  the  Old  Regime  must  be  overthrown  and  replaced  by 
another,  wherein,  to  constitute  the  normal  order,  law  should  be 
founded  upon  rationalistic  principles.1 

So  far  as  public  law  was  concerned,  the  task  was  easy.  In 
establishing  new  principles  the  Revolution  did  not  have  to  free 
itself  from  a  body  of  doctrine  justifying  the  old  order  of  things. 
The  work,  nevertheless,  presented  difficulties  when  it  came  to 
property  rights.  Then  more  than  at  any  other  time,  the  problem 
presented  was  political  (and  so  falling  within  the  category  of  public 
law)  as  well  as  economic  (and  so  comprised  within  private  law). 
The  question  was,  in  fact,  how  to  free  property  from  the  feudal 
burdens  which  weighed  upon  it  and  to  make  it  the  cornerstone  of 
the  new  political  and  economic  organization.  Thus  the  Revolu- 
tion both  destroyed  the  Old  Regime  and  through  its  constitutions 
created  at  a  stroke  a  new  political  order  resting  upon  the  principles 
of  unrestricted  private  ownership,  the  rights  of  men,  the  sovereignty 
of  the  people,  and  the  separation  of  governmental  powers.  The 
new  order  had  no  traditional  basis.  Individualism,  rationalism, 
and  idealism  triumphed.  But  the  victory  of  individualism  was  in 
no  wise  inconsistent  with  the  recognition  of  the  supreme  power 
of  the  State,  which  was  regarded  as  sovereign  merely  in  order  to 
assure  to  each  citizen'  a  maximum  of  liberty. 

It  was  bound  to  be  otherwise  in  private  law.  The  idea  of 
codification  and,  consequently,  of  unification  of  the  law,  was  every- 
where an  accepted  principle.  It  was  not,  in  fact,  new  in  Europe ; 
for  several  countries  had  already  codified  their  civil  law.2  The 
French  monarchy  also  had  approached  the  task  of  codifying  French 
law ;    but  it  failed    for  political  and    social    reasons.3     The  way 

1  Michelet  in  his  "Histoire  de  la  Revolution  Francaise  ",  Vol.  I,  introd., 
well  said  :  "I  define  the  Revolution  as  the  coming  of  law,  the  resurrection 
of  right,  the  reaction  of  justice."  . 

3  Planiol,  under  head:  "Code  civil",  in  "Grande  Encyclopedie  ",  p. 
794,  and  the  same  author's  "Traite  elementaire  de  droit  civil",  Vol.  I, 
sec.  125;  also  Glasson,  "La  codification  en  Europe  au  XIXe  siecle",  in 
"  Revue  politique  et  parlementaire "  (1894),  Vol.  II,  pp.  201-202. 

3  Cf.  Sagnac,  "La  legislation  civile  de  la  Revolution  francaise",  introd.. 
chap.  i. 

7 


§  1]  PART    I      READJUSTMENT   OF    LAW  [Chap.    I 

being  smoothed  after  the  Revolution  (which  had  been  both  political 
and  social),  several  persons  presented  drafts  of  codes  to  the  legisla- 
tive assemblies  of  the  period.1 

But  now  that  it  was  no  longer  a  question  of  opportunity  for  the 
idea  but  of  the  manner  in  which  codification  was  to  be  effected, 
harmony  of  course  vanished,  and  jurists  and  philosophers  no  longer 
agreed.  The  struggle  varied  in  intensity  with  the  different  phases 
of  the  revolutionary  period.  Under  the  Constitutional  Assembly 
it  was  bitter,  and  the  laws  of  that  period  were,  therefore,  com- 
promises ;  under  the  Legislative  Assembly  the  traditional  views 
lost  ground ;  under  the  Convention  rationalism  triumphed  com- 
pletely. All  prior  legislation  was  treated  as  belonging  to  uncivi- 
lized epochs.  Rationalism  so  gained  the  ascendency  that  the 
aim  was  to  reduce  the  codes  to  a  minimum  of  provisions,  for  fear  of 
fettering  the  free  action  of  the  individual. 

A  legislative  committee  was  charged  with  drafting  a  civil  code, 
and  Cambaceres  presented  it  to  the  Convention.  In  his  report 
he  explained  the  principles  underlying  the  draft.  It  reveals  plainly 
the  exaggeration  of  the  philosophical  tendency  of  the  period ;  for 
example,  in  such  phrases  as  "  the  firm  ground  of  the  laws  of  nature 
and  the  virgin  soil  of  the  Republic."  He  desired  laws  to  be  neither 
too  few  nor  too  many,  since  conciseness  was  an  object.  Only  a 
few  texts  of  law,  pronouncing  the  general  principles,  were  needed. 
"  The  legislator  should  not  aspire  to  declare  everything ;  but,  after 
having  laid  down  the  generative  principles  anticipatory  of  many 
doubtful  points,  he  should  undertake  an  elaboration  leaving  but 
few  questions  for  determination."  Lawrs,  he  added,  should  be 
drafted  with  clearness  and  precision.2 

In  spite  of  the  very  small  number  of  provisions  contained  in  this 
Code,  the  Convention  judged  it  too  complicated  and  not  sufficiently 
radical  and  philosophical.3  By  a  Decree  of  November  3,  1793,4 
it  entrusted  a  commission  of  philosophers  with  the  preparation  of 
a  code  to  be  conceived  in  accordance  with  the  new  ideas.  The 
Decree,  however,  was  never  carried  out.  Later  a  new  committee 
was  appointed  to  prepare  another  draft,  and  this  was  likewise 
presented  by  Cambaceres.  In  a  second  report  he  limited  himself 
to  saying,  when  he  explained  the  principles  underlying  the  new 

1  Sagnac,  op.  cit.,  pp.  46  et  seq. 

2  Fenet,  "Recueil  complet  des  travaux  preparatoires  du  Code  civil", 
Vol.  I.,  pp.  2  and  3. 

3  Edgard  Quinet,  "La  Revolution"  (ed.  commemorative  of  1789),  Vol. 
II,  bk.  XV,  §  11. 

4  Sirey,  "Lois  annotees",  Vol.  I,  p.  273. 

8 


Chap.    I]  DOMINANT  IDEAS   TO    1850  [§  1 

codification,  that  this  draft  was  but  "  the  Code  of  Nature,  sanc- 
tioned by  reason  and  guaranteed  by  liberty." 1  This  second 
draft  also  failed  of  adoption ;  it  was  criticized  as  being  a  table  of 
contents  rather  than  a  code  of  civil  law.2  All  the  laws  voted  by 
the  Convention  were  inspired  by  the  idea  of  unification.  The 
Roman  and  canon  law  were  held  in  contempt ;  on  the  other  hand 
customary  law  was  drawn  upon  though  adapted  to  the  new  order 
of  the  period. 

After  1795  the  primarily  philosophical  ideas  of  the  Convention 
lost  favor.  The  desire  was  expressed  for  a  more  detailed  code 
than  the  preceding  drafts,  and  the  Convention  was  asked  to  give 
consideration  to  the  entire  body  of  prior  legislation.  It  was  an 
obvious  reaction  towards  traditional  views.  Rationalism  had 
lost  ground ;  and  Cambaceres  reflected  this  state  of  mind  in  his 
third  draft.3 

All  these  drafts  of  the  revolutionary  period  show  a  steady  im- 
provement in  redaction.  Their  method,  clearness,  and  precision 
exhibit  an  evident  progress  in  legal  thought,  a  progress  due  in 
great  part  to  the  writings  of  the  philosophers,  whose  works  were 
remarkable  for  these  qualities. 

(5)  Crystallized  Law  and  Changing  Society.  —  During  the  whole 
of  the  revolutionary  period  no  one  doubted  but  that  legislation 
must  be  the  sole  source  of  law ;  and  yet  no  one  concerned  himself 
as  to  how  harmony  was  to  be  secured  between  codified  law  and  the 
progress  of  social  life.  Was  it  imagined  that,  once  the  law  was 
codified,  society  would  be  able  to  shape  its  needs  to  its  laws,  and 
that  jural  life  would  stop,  crystallized  into  unchanging  texts? 
Or  was  it  believed  that  it  properly  fell  to  the  legislator  of  the  future 
to  solve  the  problem  by  periodic  revision  ?  The  legislative  labors 
of  the  period  give  us  no  clue. 

In  the  first  draft  which  he  presented  to  the  Convention,  Cam- 
baceres appeared  indeed  to  have  given  concern  to  this  question 
and  to  have  attempted  its  solution.  He  desired,  —  and  this  was 
the  dominant  idea  of  the  period  —  that  codification  should  be 
limited  to  establishing  broad  generative  principles.  He  seemed 
to  intend  that  legislation  should  only  lay  the  jural  foundations 
upon  which  the  whole  law  was  to  be  built  up  by  spontaneous  de- 
velopment. It  would  have  been  a  satisfactory  solution  from  the 
theoretic  as  well  as  from  the  practical  standpoint.     Unfortunately 

1  Fenet,  op.  cit.,  Vol.  I,  p.  109. 

2  Id.,  Vol.  I,  p.  xlvii. 

3  Id.,  Vol.  I,  pp.  141-142,  175,  176. 

9 


§  1]  PART   I      READJUSTMENT    OF   LAW  [Chap.    I 

it  was  destined  not  to  be  adopted.  The  idea  was  not  developed, 
nor  even  formulated  with  precision.  On  the  contrary,  it  was  the 
general  belief  of  that  period,  by  way  of  reaction  against  the  ex- 
cesses of  the  Old  Regime,  that  law  should  not  develop  spontane- 
ously ;  the  judge  should  be  limited  to  the  function  of  a  mere 
interpreter  of  legal  texts,  and  he  was  refused  any  latitude  to  trans- 
form old  or  to  create  new  rules. 

§  2.  Influence  of  the  Philosophy  and  Economics  of  the  1700  s 
upon  Codification.  —  The  Consulate  really  initiated  the  true 
period  of  French  codification.  Napoleon  used  his  power  and 
prestige  to  accomplish  the  work.  In  it  he  recognized  not  only  a 
social  need  but  also  a  political  instrument  to  consolidate  the  new 
order  of  things.  The  time  was  favorable  for  the  accomplish- 
ment of  this  task,  which  had  been  hindered  during  the  Revolution 
by  the  political  unrest  of  the  period  and  by  the  want  of  agreement 
in  legal  and  philosophical  minds  upon  the  underlying  principles 
and  governing  ideas  which  should  enter  into  the  new  legislation. 

It  is  impossible  to  understand  correctly  the  significance  of  this 
codification,  the  ideas  which  inspired  it  and  the  influence  exercised 
upon  it  by  the  philosophers  of  the  preceding  century,1  unless  we 
appreciate  the  political,  economic,  and  social  conditions  of  France 
at  that  time.  The  Old  Regime  had  disappeared;  a  new  political 
order  had  succeeded  and  was  already  becoming  firmly  established. 
The  new  order  had  been  founded  upon  the  novel  principles  for 
which  the  Revolution  had  been  fought.  It  was  possible  to  adhere 
to  the  ideas  which  dominated  the  Revolution,  that  is  to  say,  to 
create  at  a  stroke  something  new,  founded  on  reason  and  abstract 
principles.  This  was  true  because  political  changes  do  not  touch 
very  closely  the  legal  relationships  between  individuals.  And, 
moreover,  no  one  dreamed  of  codifying  public  law,  particularly 
administrative  law,  at  that  time.  This  is  not  surprising  when  we 
remember  that  this  branch  of  law  did  not  exist  and,  in  fact,  could 
not  exist  in  pre-revolutionary  France.  While  the  Revolution 
made  its  existence  possible,  it  was  still  of  too  recent  date  and  could 
not,  for  want  of  time,  have  been  sufficiently  elaborated.2 

Imperial  despotism  and  a  form  of  suffrage  limited  b}^  property 

1  As  yet,  no  one  has  studied  the  influence  of  the  philosophers  of  the  1700  s 
upon  the  codification  of  private  law.  One  might  be  misled  by  the  title 
of  certain  works,  as,  Lerminier,  "De  l'influenee  de  la  philosophie  du  dix- 
lmitieme  siecle  sur  la  legislation  et  la  soeiabilite  du  dix-neuvieme"  (Paris, 
1833). 

-  Cf.  Ducrocq,  "  Cours  de  droit  administratif "  (7th  ed.,  1897),  Vol.  I, 
pref.,  §§  I,  II. 

10 


Chap.    I]  DOMINANT   IDEAS   TO    1850  [§  2 

qualifications  were  two  facts  which  give  an  idea  of  the  political 
situation  of  the  period.  If  we  turn  now  to  its  economic  and  social 
condition,  we  find  that  the  system  was  that  of  the  petty  industry. 
The  population  was  largely  agricultural ;  movable  wealth  hardly 
existed.  The  legal  relationships  of  individuals  were  comparatively 
few ;  they  were  wholly  individualistic  in  character,  well  defined, 
essentially  national ;  and  they  changed  but  very  gradually.  There 
was  no  social  problem  to  solve,  —  only  a  question  of  pauperism, 
falling  in  the  sphere  of  a  poor  law.  The  working  class  was  not 
clamoring  for  a  labor  code.  Indeed,  its  condition  interested  no 
one,  whether  government,  society,  or  codifiers.  Wage-earners 
formed  no  political  party  but  were  disunited  over  the  whole 
country. 

From  these  observations  we  see  that  the  problem  of  the  codi- 
fication of  private  law  might  have  been  stated  in  these  terms  : 

(a)  Contrary  to  the  case  of  public  law,  the  legislator  could  not, 
in  constructing  a  body  of  private  law,  draw  exclusively  upon 
rational  principles.  Private  law  governing  the  relationships  of 
individuals,  it  was  impossible  wholly  to  ignore  the  past.  Jurist 
and  legislator  agreed  to  renew  the  past,  though  they  desired  to 
make  it  accord  with  the  new  principles  proclaimed  by  the  Revolu- 
tion, especially  that  of  the  right  of  property,  unburdened  of  all 
feudal  charges.  The  inequalities  sanctioned  by  law,  based  upon 
person  or  property,  were  no  longer  conceded.  It  was  also  agreed 
that  the  new  legislation  should  be  a  compromise  between  the  two 
sources  (Roman  and  customary)  of  pre-revolutionary  law ;  the 
sole  question  was  to  determine  which  should  be  given  predomi- 
nance. 

(6)  The  unification  and  simplification  of  the  law  was  to  be 
worked  out  to  conform  with  individualistic  principles,  so  as  to 
harmonize  with  the  other  institutions,  sprung  from  the  Revolution. 
Individualism  was  to  govern,  therefore,  not  only  the  relationships 
between  the  individual  and  the  State,  but  also  between  individuals 
themselves.  The  law  of  private  property  was  to  be  made  individ- 
ualistic for  two  reasons :  because  private,  not  social,  interests 
were  to  weigh ;  and  because,  in  their  mutual  relationships,  in- 
dividuals were  to  be  considered  as  though  living  isolated  from 
one  another. 

(c)  The  provisions  of  the  new  legislation  were  no  longer  to  be 
excessively  brief  but  were  to  receive  certain  clear  and  precise 
elaborations. 

We  see,  then,  how  great  was  the  influence  of  the  philosophy  of 

11 


§  2]  PART    I     READJUSTMENT   OF    LAW  [Chap.    I 

the  1700  s  upon  the  legislation  of  the  1800  s.  To  appreciate  clearly 
the  correctness  of  the  foregoing  summary,  and  to  comprehend  the 
legislative  labors  of  the  year  VIII  (1799-1800),  we  must  now  turn 
our  attention,  first,  to  the  underlying  principles  or  postulates  upon 
which  the  codification  rested  ;  and  second,  to  the  governing  ideas 
from  which  it  drew  to  regulate  the  law  of  property  and  family. 

§  3.  The  Principles  Underlying  Codification.  —  The  postulates  of 
the  codification  tended  to  unify  and  simplify  the  law,  rendering  it 
clear  and  precise  and  at  the  same  time  eliminating  the  defects  of 
the  old  legal  system  in  this  regard.  It  is  important  to  note  that 
these  postulates  did  not  obtain  in  public  law  and  were  unknown 
to  the  old  system. 

Let  us  now  consider  the  more  important  of  them. 

(1)  Statutory  Laioioas  to  be  the  Sole  Rule  Governing  Legal  Rela- 
tionships; for  it  was  enacted  by  the  legislative  power  and  remained 
until  repealed.  The  Civil  Code  was,  therefore,  to  govern  the 
whole  body  of  relationships  of  private  law,  co-ordinating  into  one 
harmonious  and  systematic  whole  the  various  jural  institutions 
comprised  within  this  branch. 

The  Committee  which  prepared  the  draft  of  the  Civil  Code 
reacted  against  the  earlier  revolutionary  tendency  which  favored 
a  too  brief  codification.  In  his  preliminary  report  made  upon 
presenting  the  draft  of  the  Committee,  Portalis  said :  "  At  the 
opening  of  our  conferences,  we  were  impressed  by  the  opinion,  so 
generally  held,  that  in  drafting  a  civil  code  a  few  very  precise 
provisions  upon  each  subject  would  suffice,  and  that  the  great  art 
was  to  simplify  all  by  anticipating  all."  *  Moreover,  the  authors 
of  the  Civil  Code,  while  contemptuous  of  the  sources  of  the  old 
law,  particularly  of  custom,  wrere  not  so  exclusive  in  this  regard 
as  the  philosophers  of  the  1700  s  and  the  revolutionary  legislators. 
It  seems  clear  that,  though  statutory  law  was  for  those  authors  the 
principal  source  of  law,  it  was  not  the  only  source.  Bold  as  this 
assertion  may  appear,  we  believe  that  it  can  be  verified  in  the 
report  of  Portalis.  He  certainly  recognized  that  the  legislator 
could  not  regulate  or  foresee  everything ;  and  the  Committee,  in 
preparing  its  report,  did  not  make  the  attempt.  "  A  host  of 
things,"  continued  Portalis,  "  are  necessarily  left  to  usage,  to  the 
discussion  of  men  learned  in  the  law,  to  the  decision  of  judges.  .  .  . 
The  function  of  statutory  law  is  to  fix,  in  broad  lines,  the  general 
maxims  of  the  law,  to  establish  principles  that  will  be  fecund  in 
consequences,  and  not  to  descend  to  the  details  of  questions  that 
1  Fenet,  op.  cit.,  Vol.  I,  p.  467. 
12 


Chap.    I]  DOMINANT  IDEAS  to    1850  [§  3 

may  arise  in  each  subject.  It  is  for  the  judge  and  jurist,  imbued 
with  the  general  spirit  of  the  laws,  to  direct  their  application." 
In  all  civilized  countries  (as  he  later  pointed  out)  there  grew  up 
alongside  the  statutory  law  a  body  of  maxims,  decisions,  and  doc- 
trines which  have  always  been  regarded  "  as  a  true  supplement  to 
legislation."  l  He  then  showed  what  rules  were  to  be  followed  in 
case  there  was  no  explicit  provision  covering  the  question  which 
the  judge  was  called  upon  to  decide,  and  he  spoke  of  usage  and 
equity,  which  he  described  as  a  return  to  natural  law.2  Article 
4  of  the  Civil  Code,  furthermore,  certainly  seems  to  recognize 
implicitly  that  the  Code  does  not  encompass  the  whole  law,  since 
where  it  is  silent  it  leaves  to  the  judge  the  task  of  himself  creating 
the  rule  to  be  applied. 

In  spite  of  the  very  positive  declaration  of  Portalis,  and  of  the 
terms  of  Article  4,  writers  and  courts,  at  least  from  the  beginning 
of  the  second  half  of  the  1800  s,  held  it  as  an  indisputable  principle 
that  statutory  law  constitutes  the  sole  juridical  rule.  Conse- 
quently, they  held  that  the  relationships  of  private  law  depended 
without  exception  upon  the  rules  of  the  Code.3  It  is  important, 
however,  to  remember  that  the  provisions  of  the  Code  constitut- 
ing the  law  of  property  are  in  conformity  with  the  individualistic 
doctrine,  meant  to  be  solely  interpretative  or  supplementary  of 
the  intent  of  the  parties.  The  rule  of  law  governing  the  matter  is 
that  the  parties'  will  is  autonomous.  It  is  for  the  individual  to 
make  his  own  rule  of  law,  in  the  absence  of  any  legislative  provision 
to  the  contrary. 

(2)  The  Law  was  to  be  the  Same  for  All,  and  was  applicable 
throughout  all  parts  of  the  Republic,  without  any  room  for 
modifications  by  reason  of  differences  in  the  localities  where  en- 
forced. 

Public  law  no  longer,  as  in  feudal  times,  permitted  a  hierarchy  of 
persons  and  lands ;  consequently  there  must  needs  be  equality  of 
all  citizens  before  the  civil  law.  Such  equality,  however,  was  not 
made  an  absolute  principle  in  the  Code.  It  did  not  exist  between 
subjects  and  foreigners,  between  those  who  owned  property  and 
those  who  did  not,  or  between  husband  and  wife,  any  more  than 
between  legitimate  and  illegitimate  children.  The  Civil  Code, 
indeed,  contained  very  harsh  provisions  affecting  the  foreigner, 
and  it  was  Napoleon  himself  who  secured  their  adoption.     The 

1  Fenet,  op.  cit..  Vol.  I,  pp.  469-470.  2  Id.,  Vol.  I,  pp.  470-476. 

3  For  the  motives  leading  to  the  adoption  of  this  theory,  cf.  Geny, 
"Methodes  d'interpretation  et  sources  en  droit  prive  positif  ",  §§  37-50. 

13 


§  3]  .PART   I      READJUSTMENT    OF    LAW  [Chap.    I 

foreigner  did  not  enjoy  civil  rights,1  he  might  not  inherit,2  nor 
receive  a  gift  or  legacy.3  In  regulating  their  legal  relations  the 
Code  recognized  the  economic  inequality  between  the  mercantile 
and  the  non-mercantile  classes  which  was  a  mark  of  "bourgeois" 
prejudice.  But  it  did  not  recognize  another  economic  inequality, 
quite  as  general  in  character,  namely,  that  existing  between  the 
owning  and  the  non-owning  classes.  Protection  to  property  rights 
in  land  was  regarded  by  the  Code  as  of  first  importance,  and  it  was 
the  owner,  namely,  the  "one  who  has",  whom  the  Code  kept  in 
view  in  regulating  the  rights  of  individuals.  The  interests  of  the 
"  have  nots  "  were  not  safeguarded,  and  this  is  explained  by  two 
facts :  that  the  Revolution  had  been  a  victory  of  the  middle  class, 
not  of  the  proletariat,  over  the  privileged  classes ;  and  that  as  yet 
no  social  problem  had  arisen.  No  such  distinction,  therefore, 
was  made  by  the  Civil  Code.  There  is  no  call  here  to  revamp  the 
attacks  of  the  socialists  on  the  Civil  Code,  but  it  is  certain  that 
the  facts  exist  on  which  they  base  their  attacks. 

The  legislator  of  course  recognized  the  jural  personality  of  the 
individual ;  he  regulated  the  law  of  real  property,  the  protection 
of  which  was  one  of  the  fundamentals  of  the  Code  ;  he  freed  it  from 
feudal  burdens  and  secured  its  exclusive  enjoyment  to  the  owner. 
But  nowhere  did  he  guarantee  to  the  individual  who  had  nothing 
the  right  to  a  physical  existence  and  the  right  to  work,  which  the 
revolutionary  Constitutions  had  proclaimed.  It  may  of  course 
be  objected  that  these  are  matters  of  administrative  and  not  civil 
law. 

To  protect  the  middle-class  property-owning  family,  the  Code 
safeguarded  the  estates  of  minors  and  married  women ;  it  allowed 
the  latter  to  plead  the  invalidity  of  their  own  acts  and  contracts 
when  not  authorized  by  their  husbands;  the  law  gave  them  a  gen- 
eral lien  upon  the  property  of  their  husbands  for  the  restoration 
of  their  marriage  portion ;  they  might  renounce  communit}^  as  a 
matrimonial  property  system.  All  were  provisions  presupposing 
a  certain  affluence  in  the  home.  While  proclaiming  the  principle 
of  liberty  of  contract,  the  Code  opposed  the  power  of  the  owner  to 
squander  freely  his  estate  and  so  created  a  guardianship  over 
spendthrifts.  The  law  even  protected  the  property  of  persons  of 
age  by  admitting  the  invalidity  of  contracts  because  of  gross 
failure  of  consideration  ("  lesion  "),  or  of  a  sale  because  of  a  defect 

'Art.  11. 

"  Art.  726  [changed  by  the  Law  of  July  14,  1819.  — Transl.]. 
An.  912  [repealed  by  the  same  law.  —  Transl.]. 

14 


Chap.    IJ  DOMINANT  IDEAS   TO    1850  [§  3 

in  the  thing  sold;  it  limited,  too,  the  rate  of  interest.  Thus  in 
three  different  instances  it  protected  the  interests  of  owners : 
where  they  were  lacking  capacity  to  take  charge  of  their  own  in- 
terests, where  they  squandered  their  property,  and  where  they 
had  been  victims  of  fraud. 

On  the  other  hand,  it  did  not  regulate  the  contract  for  the  hire  of 
services,  which  was  the  most  important  contract  the  workingman 
could  enter  into ;  nor  did  it  dream  of  protecting  him  against  his 
own  heedlessness.  Nothing  prevented  him  from  squandering  the 
only  capital  which  was  really  his,  —  the  strength  to  labor.  He 
might  imperil  it  as  he  pleased.  There  was  no  provision  preventing 
the  contract  of  hire  of  services  from  injuring  those  who  promised 
their  services,  nor  from  compromising  their  health  or  moral 
standards.  While  contracts  relating  to  property  were  regulated, 
the  agreement  to  work  and  labor  was  left  to  the  will  of  the  parties. 
The  Code  even  manifested  its  favor  of  the  capitalist  class  by  the 
suspicion  in  which  it  held  the  workingman  in  Article  1781. 1 

In  the  working  class  in  contrast  to  the  middle  class  neither  the 
family  nor  the  wife  was  protected  ;  the  only  fortune  of  the  female 
worker,  her  wages,  went  into  the  community  property.  The 
Code,  furthermore,  established  an  institution  particularly  un- 
favorable to  the  laboring  class,  namely,  civil  arrest.  It  was  a 
means  of  constraint  which  might  be  used  against  any  debtors. 
But  the  workingman  almost  alone  was  called  upon  to  suffer  its 
effects,  since  he  had  no  capital  permitting  him  to  meet  his  obliga- 
tions. 

The  only  measures  in  protection  of  the  laboring-man  which  can 
be  cited  were  the  two  provisions  creating  a  lien  in  favor  of  a  certain 
class  of  workers,  the  domestic  servants,  and  intended  to  secure 
with  greater  certainty  the  payment  of  their  wages.2 

Nor  did  the  Criminal  Code  establish  the  principle  of  equality 
between  the  two  classes,  the  holding  and  the  working  class.  It 
punished  association,  union,  strike,  the  only  weapons  which  the 
workingman  had  to  make  good  his  economic  demands. 

The  Code  also  sanctioned  the  inequality  of  rights  between 
husband  and  wife.  By  way  of  reaction  against  the  excesses  of 
certain  of  the  revolutionary  laws,  it  did  not  treat  legitimate  and 
illegitimate  children  alike,  but  denied  the  latter  certain  rights 
accorded  the  former. 

1  [Repealed  by  Law  of  Aug.  2,  1868.  — Transl.] 

2  Arts.  1798,  2101,  2103,  §  4,  of  the  Civ.  C.  and  Art.  191  of  the  Com.  C. ; 
regarding  wages  in  possession,  cf.  Art.  592,  C.  Civ.  Proe. 

15 


§  3]  PART   I      READJUSTMENT   OF   LAW  [Chap.    I 

It  was,  therefore,  only  in  appearance  that  the  Civil  Code  granted 
equality.  It  was  at  bottom  anti-democratic ;  it  only  protected 
the  rights  of  the  individual  so  long  as  he  was  an  owner  or  employer. 
It  constituted,  therefore,  a  body  of  law  in  the  interest  of  the  middle 
class ;  it  was  far  from  egalitarian ;  and  it  favored  power,  for  it 
established,  for  example,  the  authority  of  the  father  of  the  family 
and  of  the  master. 

(3)  Law's  Excessive  Logic.  —  Legislation  was  to  set  out  from  a 
certain  number  of  general  principles  and  their  consequences  were 
to  be  elaborated  in  its  provisions  ;  the  result  was  that  its  rules  were 
marked  by  an  excess  of  logic. 

All  groups  of  facts  of  the  same  order  were  governed  by  the  same 
principle.  The  deductions  from  this  principle  were  the  same, 
regardless  of  the  special  nature  of  the  facts  in  question.  The 
legislator  was  not  concerned  whether  the  principles  formulated  by 
him  might  be  conveniently  applied  to  an  anticipated  set  of  facts ; 
his  aim  was  solely  that  those  principles  be  followed  out  by  rigorous 
logic.  He  admitted  the  fewest  possible  exceptions,  for  fear  that 
they  would  injure  the  harmony  of  his  work.  He  insisted  primarily 
upon  giving  a  logical  character  to  his  provisions  and  upon  drawing 
all  possible  conclusions  from  the  principles  which  he  declared  to 
govern  a  given  class  of  facts. 

(4)  Penalties.  —  The  guarantee  of  the  observance  of  the  law 
was  not  to  lie  in  the  surveillance  of  the  legislator,  but  in  the  penalty 
attaching  to  it. 

The  penalty  varied  according  as  it  was  a  question  of  property  or 
of  family  rights.  In  the  law  of  property  the  penalty  consisted 
in  the  loss  of  the  right,  in  arrest,  the  voidness  of  the  transaction, 
or  in  damages.  In  family  law  the  penalty  resulted  in  certain  con- 
sequences to  private  right,  the  separation  of  estates,  absolute  and 
limited  divorce,  disqualification  to  inherit,  etc. 

(5)  Extreme  Precision.  —  The  extreme  precision  of  the  law 
prevented  its  adjustment  to  the  facts  calling  for  its  application. 
The  rules  of  private  law,  by  very  reason  of  their  precision,  had 
neither  the  flexibility  nor  breadth  of  those  of  public  law.  By  lack 
of  flexibility  we  mean  that  neither  writers  nor  courts  could  shape 
them  to  the  new  requirements  of  social  life,  and  that  they  did  not 
vary  according  to  the  particular  eases  which  might  arise.  By  lack 
of  breadth,  we  mean  that  they  could  not  be  extended  to  cases 
which  the  legislator  had  not  foreseen,  and  at  the  same  time  com- 
mentators and  judges  were  forbidden  to  create  new  rules  of  law 
on  the  ground  of  meeting  new  social  needs. 

16 


Chap.  I]  dominant  ideas  to  1850  [§  3 

It  is  notable  that  in  the  law  of  property  the  texts  possessed  abso- 
lute precision.  It  was  only  exceptionally  that  they  employed 
terms  having  a  general  meaning,  such  as  '  good  morals  '  and 
'  public  policy.'  With  regard  to  family  law,  the  texts  were  in 
general  broader  and  left  to  the  interpreter  a  certain  discretion. 
This  was  the  case  in  all  matters  relating  to  the  reciprocal  rights 
and  obligations  of  married  persons,  or  parents  and  children,  and 
to  the  causes  of  absolute  and  limited  divorce  or  of  the  separation 
of  estates. 

If  the  law  was  thus  narrow  and  wanting  in  the  desired  breadth, 
it  was  because  the  legislator  wished  his  rules  to  be  uniform,  that 
is  to  say,  that  a  like  solution  should  apply  to  all  the  like  cases  that 
might  present  themselves.  He  went  so  far  as  to  ask  unity  of 
interpretation,  and  it  was  with  this  intent  that  he  established  the 
Supreme  Court  of  Errors. 

The  legislation  being  thus  precise,  how  was  codified  law  to  be 
kept  in  harmony  with  the  fresh  needs  of  society?  The  legislator 
of  the  year  VIII  (1799-1800)  did  not  ask  himself  this  question 
any  more  than  did  his  predecessor  of  the  Revolution.  Why? 
Did  he  believe  that  codification  would  result  in  halting  jural  life 
so  that  the  law  could  progress  only  with  the  assent  of  the  legislator  ? 
The  preparatory  reports  of  the  codifiers  were  silent  in  this  regard. 
This  may  be  explained,  first,  by  the  desire  to  bring  to  an  end  the 
Old  Regime  by  firmly  planting  the  New  upon  the  basis  of  legisla- 
tive unity ;  and  further,  by  a  disregard  for  the  evolution  of  jural 
life,  which  it  was  believed  could  be  directed  into  the  channels 
prepared  by  the  Code,  which  in  his  eyes  constituted  written  Reason 
and  was  destined  to  play  the  same  role  as  Roman  law.  His  silence 
was  the  more  excusable  in  that  the  Commission  had  before  its 
eyes  only  the  Roman  legal  system,  which  had  endured  more  than 
twenty-five  centuries.  The  law-maker  of  the  year  VIII  might 
well  pass  this  problem  by.  His  duty  was  to  provide  for  the  pres- 
ent, and  it  was  not  surprising  that  he  was  not  preoccupied  by  a 
consideration  of  the  future. 

Nevertheless,  Portalis  had  foreseen  the  difficulty.  He  showed, 
indeed,  in  his  preliminary  report,  by  citing  the  example  of  Roman 
law,  that  codification  could  not  and  should  not  resist  the  develop- 
ment of  law ;  for  that  law  would  continue  its  evolution  nevertheless. 
But  how  was  this  evolution  to  take  place  thereafter?  This  he  did 
not  say.  He  was  content,  like  Cambaceres  in  the  preparation  of 
the  prior  drafts  presented  by  him  to  the  Convention,  to  provide 
for  the  cases  where  no  exact  text  was  directly  applicable,  by  leaving 

17 


§  3]  PART   I      READJUSTMENT  OF   LAW  [Chap.    I 

a  broad  power  of  interpretation  to  the  judge ;  he  even  empowered 
him  in  that  case  to  create  the  rule  of  law  to  be  applied,  provided 
that  it  was  in  conformity  with  usage  and  equity.  But  this  power, 
besides  being  contradictory  to  the  character  of  preciseness  in  legal 
texts,  was  not  broad  enough  to  make  it  possible  for  the  judge  to 
hold  in  even  pace  the  twofold  evolution  of  law  and  society. 

§  4.  Property  and  Family.  —  What  were  the  governing  ideas  by 
which  the  legislator  regulated  the  law  of  property  and  family? 
This  is  what  we  shall  now  examine. 

Upon  this  point  the  legislator  reacted  in  a  very  definite  manner 
against  the  rationalism  of  the  philosophers  of  the  preceding  cen- 
tury and  of  the  revolutionary  laws.  He  realized  how  impossible 
it  was  to  erect  in  a  day  an  entirely  new  edifice  of  law.  Portalis 
declared  in  his  preliminary  report  that  it  would  be  well  to  be  spar- 
ing of  innovations,1  and  that  respect  for  tradition  should  guide  the 
legislator.  And  this  principle  they  followed.  The  Code  of  1804 
was  moderate  and  wise ;  it  was  neither  reactionary  nor  impru- 
dently radical ;  it  neither  sought  to  restore  the  institutions  of  the 
Old  Regime  nor  to  renew  the  attacks  of  the  Revolutionists.2  It 
took  as  its  basis  the  law  of  the  Old  R  egime  and  sought  to  reconcile 
the  rules  of  the  customary  and  the  written  law,  rejuvenating  both 
through  the  principles  which  had  served  as  a  foundation  for  the 
public  law  of  the  Revolution. 

We  must  now  examine  separately  the  law  of  property  and  of 
family,  if  we  would  understand  the  governing  ideas  on  which  the 
Civil  Code  was  built. 

(1)  Property  Law.  —  In  the  law  of  property  the  legislator, 
animated  by  the  "  Declaration  of  the  Rights  of  Man  ",  set  up  the 
principle  of  the  liberty  and  equality  of  all  citizens  before  the  law 
(save  for  the  exceptions  already  noted),  and  the  right  of  private 
ownership  freed  from  the  burdens  of  the  Old  Regime. 

The  law  of  property  was,  therefore,  essentially  individualistic. 
It  protected  the  individual  interests  of  persons,  especially  of  those 
who  were  property  owners,  and  neglected  the  societary  interests, 
for  it  conceded  (in  harmony  with  the  orthodox  economic  doc- 
trines) that  the  individual,  by  the  very  fact  of  acting  in  his  own 
interest,  contributed  to  the  general  interests.     The  legislator  had 

1  Fenet,  op.  cit.,  Vol.  I,  p.  4G6. 

i;i  confirmation,  cf.  Dufour,  "Code  civil  avec  les  sources  ou  toutes  ses 

■  'inns    ont    ete   puisees"   (4  vols.,   1806);     Valette,  "De   la  duree 

de  I'ensemble  du  droit  civil  francais  pendant  et  apres  la  Re- 

volulion  de   ITS'.)",  read  before  the  "Academie  des  Sciences  morales  et 

pohtiques",  Dee.,   L870  (Paris,  1872). 

18 


Chap.    I]  DOMINANT   IDEAS   TO    1850  [§  4 

in  view,  then,  a  type  of  individual  actuated  by  selfish  motives  and 
not  restrained  by  the  surroundings  in  which  he  lived.  Besides 
this,  the  individual  was  always  looked  upon  as  acting  alone  to 
obtain  his  end.  While  the  Code  regulated  the  contract  of  partner- 
ship, it  prohibited  association  (labor  unions,  etc.),  —  a  subject 
which  is  erroneously  considered  even  to-day  as  a  part  of  public  law, 
having  no  relation  to  private  law.  Thus  the  individual  was  sup- 
posed to  conduct  himself  not  as  having  interests  in  common  with 
his  fellow-men,  but  as  opposing  his  interests  to  theirs. 

As  a  consequence  of  its  conception  of  the  relation  of  the  individ- 
ual to  society,  the  Code  assumed  that  it  was  for  the  individual 
himself  to  look  out  for  the  satisfaction  of  his  necessities,  and  it 
abandoned  him  to  his  own  untrammelled  efforts. 

Since  the  individual  acted  only  as  an  isolated  person  and  in 
accord  with  his  own  interest,  and  since  that  interest  appeared 
necessarily  to  be  opposed  to  others',  the  law  of  property  had  the 
task  of  placing  bounds  to  this  interest  and  of  guaranteeing  it. 
Its  function  was  to  make  possible  the  co-existence  of  individuals, 
the  limits  of  whose  interests  exactly  coincided  with  the  limits  of 
other  persons'  interests.  It  had  to  regulate  the  relationships  of 
co-existing  individuals  ;  but  in  no  particular  had  it  to  attend  to  the 
grouping  of  the  divergent  individual  interests  into  social  interests, 
such  as  would  result  in  the  creation  of  ties  of  co-ordination  and 
solidarity.  As  a  consequence  of  this  dual  individualism,  it  did  not 
admit  of  the  supremacy  of  social  interest  over  individual  interest, 
save  as  an  exception.1  Furthermore,  no  article  of  the  Code  estab- 
lished the  principle  of  mutual  assistance,  of  the  misuse  of  rights, 
or  of  the  extension  of  liability  beyond  cases  of  actual  culpabil- 
ity (which  principles,  we  shall  see,  are  the  triple  manifestation  of 
solidarity  in  the  domain  of  law).  For  the  legislator,  these  were 
considerations  quite  foreign  to  law,  belonging  rather  to  morals. 
He  admitted  only  rights  balanced  by  clearly  defined  obligations ; 
he  seemed  unconscious  of  the  idea  of  duty  as  moderating  a  right 
or  enlarging  an  obligation. 

Of  the  two  schools  of  morals  till  then  existing,  that  of  the  philos- 
ophers of  the  1700  s  and  that  of  Christian  morals,  the  Code  adopted 
the  former,  founded  as  it  was  upon  respect  for  liberty  and  acquired 
rights.  The  latter  was  left  in  the  shadow,  by  rejecting  the  ideal  of 
fraternity  upon  which  it  was  founded,  as  one  belonging  to  the  forum 
of  conscience.  So  far  as  it  rested  upon  a  basis  of  individualism,  the 
law  of  property  looked  upon  (a)  the  will  of  the  individual  as  au- 
1  Arts.  6,  686,  900,  1133,  1172,  1387,  1965,  etc. 
19 


§  4]  PART   I      READJUSTMENT   OF   LAW  [Chap.    I 

tonomous,  (b)  his  activities  as  free,  (c)  his  rights  acquired  volun- 
tarily and  freely  by  an  act  of  his  will  as  inviolate. 

(a)  The  will  of  the  individual  was  autonomous.  The  rules  of 
the  Code,  consequently,  were  to  be  only  interpretative  of,  or  sup- 
plementary to,  the  will  of  the  parties,  who  might,  as  a  general  rule, 
break  through  them  and  replace  them  by  any  other  legal  rule  they 
pleased.  Their  own  intention  constituting  their  law,  it  followed 
that  they  were  to  be  held  to  the  performance  of  their  engagements 
with  punctuality  and  good  faith,  according  to  the  terms  agreed 
upon  and  at  any  cost.  Their  property  and  even  their  person 
answered  for  their  contracts.  Upon  these  principles  the  legislator 
built  up  a  whole  group  of  theories  regarding  the  compulsory  per- 
formance of  an  obligation,  damages,  "  vis  major  "  or  inevitable 
accident,  mistake,  default,  composition  of  a  bankrupt's  creditors, 
etc. 

(b)  The  activities  of  the  individual  were  free.  He  might  attain 
his  end  by  any  means  he  thought  good,  upon  the  sole  condition  of 
not  injuring  by  his  action  the  rights  of  others.  Every  right  and 
every  obligation  arose  in  principle  through  the  personal  action  of 
man,  called  contract,  quasi-contract,  tort,  or  quasi-tort.  The 
law  conferred  a  right  or  imposed  an  obligation  only  in  exceptional 
circumstances.  For  this  reason  the  individual  was  free  to  exercise 
his  right  or  not ;  in  general,  he  had  even  the  power  to  renounce 
his  right,  save  in  the  exceptional  case  where  the  law,  out  of  social 
considerations,  prohibited  it ;  he  could  always  exercise  his  right 
in  the  measure  permitted  him  by  law  without  the  judge's  ever 
being  able,  upon  any  ground  whatsoever,  to  limit  such  exercise ; 
if,  in  exercising  his  right,  he  caused  injury  to  another,  he  owed  no 
reparation  and  could  continue  without  fear  of  molestation. 

(c)  Rights  acquired  voluntarily  and  freely  were  inviolate.  This 
was  the  logical  consequence  of  the  two  preceding  principles.  Such 
rights  were  perpetual  and  exclusive;  their  misuse  was  regarded 
no  differently  than  their  use.  They  could  be  transmitted  "  inter 
vivos  "  or  by  will,  regardless  of  the  economic  result  of  such  acts 
and  however  great  the  injury  which  society  might  suffer  by  them. 
Furthermore,  one  might  not  enrich  himself  at  the  expense  of 
another;  any  one  guilty  of  any  act  of  this  nature  was  bound  to 
indemnify  the  injured  party  for  the  damage  suffered. 

The  two  great  divisions  of  property  law,  ownership  and  inherit- 
ance, were  regulated  by  the  Code  in  accordance  with  its  distinctly 
individualistic  views : 

The  right  of  ownership  was  proclaimed  as  absolute,  exclusive, 

20 


CHAP.    I]  DOMINANT   IDEAS    TO    1850  [§  4 

and  perpetual.  The  legislator  thought  so  little  of  the  interests  of 
society  that  he  imposed  neither  limits  nor  conditions  upon  the 
acquisition  of  land.  Any  person  might  acquire  land  without 
having  to  prove  aptitude  or  special  capacity.  He  was  absolute 
owner,  that  is,  he  could  partition  the  land  at  will,  and  work  it  or  not 
at  his  pleasure.  He  was  the  exclusive  owner  ;  none  could  acquire 
his  title  against  his  will,  or  effect  a  dismemberment  of  it,  no  matter 
how  great  the  advantage  that  might  accrue  thereby  to  society. 
The  Code  provided,  no  doubt,  for  certain  cases  where  general 
interest  was  to  be  preferred  to  private  interests.  Thus  it  estab- 
lished eminent  domain,  legal  servitudes,  compulsory  partition,  and 
so  it  prohibited  trust-entails.  But  these  were  isolated  cases.  In 
general  the  Code  drew  its  inspiration  for  the  regulation  of  the  right 
of  ownership  and  the  dismemberment  of  that  right  from  private 
interest  alone  and  not  from  public  interest. 

The  law  of  inheritance,  whether  it  was  a  question  of  administer- 
ing the  estate  or  of  determining  the  lines  of  succession,  was  regu- 
lated also  in  view  only  of  the  interest  of  the  individuals.  The 
heir,  by  identification  with  the  decedent,  became  liable  for  the 
latter 's  debts  beyond  the  assets  in  the  estate,  as  a  further  conces- 
sion to  the  creditors  of  the  estate.  The  decedent,  save  in  the  case 
where  there  existed  an  undisposable  portion  reserved  by  law  for 
heirs,  might  dispose  of  all  his  property  by  will.  If  he  died  intes- 
tate his  property  went  by  law  to  relations,  possibly  of  such  a 
distant  degree  that  the  idea  of  family  affection  or  presumed  inten- 
tion of  the  decedent  could  not  suffice  to  explain  it.  The  State 
benefited  only  in  the  last  place. 

(2)  Family  Law  rested  upon  guiding  principles  quite  different 
from  those  of  the  law  of  property.  As  in  the  case  of  property  law, 
the  Code  perpetuated  prior  existing  law.  It  repudiated,  conse- 
quently, the  doctrines  of  the  philosophers  of  the  1700  s,  which, 
after  having  inspired  the  laws  of  the  Revolution,  quickly  fell 
into  discredit,  in  the  period  of  codification. 

Family  law  was  based  upon  the  idea  of  the  solidarity  of  members 
of  one  and  the  same  family  by  reason  of  the  sentiments  of  affection 
uniting  them.  Individual  interest  here  gave  way  before  social 
interest.  The  same  law,  furthermore,  established  the  principle 
of  mutual  assistance,  of  liability  independent  of  the  notion  of 
culpability,  and  of  the  misuse  of  right,  though  the  last  was  recog- 
nized only  with  important  restrictions.  It  did  not,  therefore, 
treat  the  individual  by  himself,  but  as  a  member  of  a  social  group, 
the  collective  character  of  whose  interests  arose  out  of  ties  of 

21 


§  4]  PART    I      READJUSTMENT   OF   LAW  [Chap.    I 

blood.  It  adopted  as  its  basis  the  family,  which  it  founded  upon 
marriage. 

Marriage,  an  exclusively  civil  contract,  created  between  the 
parties  a  bond  which  could  not  be  dissolved  except  for  certain  causes 
specifically  enumerated  by  the  law.  It  founded  not  alone  the 
family,  but  also  legitimate  parentage  and  affiliation.  Outside  of 
marriage  the  family  was  unlawful ;  such  a  family  was  looked  upon 
with  disfavor  by  the  legislator,  who  barely  gave  it  a  few  provisions, 
believing  that  thereby  he  was  acting  in  the  interest  of  society.  He 
recognized  no  family  outside  of  the  legal  family. 

All  his  provisions  in  this  regard  tended,  among  the  members 
of  a  family,  to  tighten  the  bonds  created  by  nature,  morals, 
and  social  life.  Between  the  members  of  the  family  standing 
in  closest  relationship,  that  is,  between  husband  and  wife  and 
parents  and  children,  he  established  a  union  of  persons  and  of 
property,  and  over  this  union  he  placed  a  head :  the  father  or 
the  husband,  to  whom  the  other  members  of  the  family  were 
united  in  relations  of  subordination.  The  whole  body  of  relation- 
ships affecting  a  person  and  the  members  of  his  family  constituted 
his  civil  status. 

In  the  conjugal  association,  the  wife  owed  obedience  to  her 
husband.  And  while  the  two  could  freely  choose  the  matrimonial 
property  system  which  was  to  govern  their  property,  the  law  laid 
down  that,  in  the  absence  of  agreement  to  the  contrary,  the  prop- 
erty of  the  two  should  be  subject  to  the  system  of  community. 
Now,  this  community  was  not  an  ordinary  partnership.  The 
husband  not  only  managed  the  common  property,  but  he  acted 
toward  third  parties  as  its  owner.  The  married  woman  lacked 
capacity;  but,  on  the  other  hand,  she  was  protected  against  her 
husband,  whether  such  protection  was  accorded  by  the  law  in  her 
own  interests  or  in  that  of  the  family.  In  matrimonial  property 
systems  other  than  the  "  legal  "  or  community  one  (i.e.  presumed 
by  law)  the  wife  might  enjoy  more  or  less  independence;  but  she 
was  never  the  equal  of  her  husband  and  could  never  dispose  freely 
of  her  property. 

In  this  family  union  as  between  father  and  children,  the  father 
'  a  not  limited  to  directing  the  education  of  his  children  and  to  the 
right  of  exercising  his  authority  over  them,  but  also  managed  their 
property  and  enjoyed  the  revenue.  The  powers  of  the  father  over 
the  persons  of  his  children  were  very  broad;  those  over  their 
property  were  less  so,  and  even  at  death,  he  was  met  by  a  final 
limitation  of  his  rights  in  the  form  of  an  undisposable  portion 

22 


Chap.    I]  DOMINANT   IDEAS   TO    1850  [§  5 

reserved  to  heirs,  a  final  proof  of  the  economic  solidarity  existing 
between  him  and  his  children. 

Since  family  law  rested  upon  these  foundations,  all  the  rights  and 
obligations  constituting  it  possessed  an  imperative  character, 
whether  the  creation,  exercise,  or  extinction  of  rights  and  obliga- 
tions were  concerned.  In  the  law  of  property  the  intention  of  the 
individual  was  clearly  declared  sovereign  by  the  legislator;  in 
family  law  it  played  no  more  than  a  subordinate  role.  Seen  from 
another  angle  of  vision,  family  rights  were  also  duties  which  might 
not  be  renounced..  Rights  and  obligations  were  only  modified 
when  the  basis  upon  which  they  rested  came  itself  to  be  altered 
(as  in  case  of  the  infidelity  of  one  of  the  consorts,  the  misconduct 
of  children).  The  legislator  then  himself  regulated  the  new  legal 
situation  arising  out  of  this  new  state  of  facts :  he  established 
divorce,  separation  of  estates,  disqualification  to  inherit,  etc. 

We  should  note  also  that  the  Code  created  duties  based  upon 
solidarity  not  only  betwreen  parents  and  children,  but  between 
other  relations,  and  these  relationships  produced  effects  more  or 
less  numerous  according  to  the  distance  separating  the  two  individ- 
uals so  united.  The  closest  degrees  of  relationship  prevented 
marriage,  and  created  legal  guardianship,  the  duty  of  maintenance, 
intestate  heirship  and  a  right  in  the  undisposable  reserve  of  a 
testator's  estate.  In  the  collateral  line  relationship  only  conferred 
the  right  of  intestate  heirship. 

§  5.  Social  Influence  of  the  Codification.  —  Resting  upon  the 
postulates  and  governed  by  the  ideas  which  have  just  been  sketched, 
the  Napoleonic  codification  was  followed,  in  France  and  in  all  the 
countries  influenced  by  the  Civil  Code,  by  certain  effects  which  it 
seems  proper  to  note,  for  they  have  been  too  often  left  in  obscurity. 

The  new  Code  had  as  a  first  result  the  disappearance  of  a  legal 
system,  incongruous  and  often  confused,  which  was  no  longer  in 
harmony  with  the  new  state  of  society  created  by  the  Revolution. 
In  its  place  succeeded  a  new  body  of  law,  precise,  clear,  well  co- 
ordinated, which,  while  borrowing  from  preceding  sources,  yet 
answered  the  new  social  needs.  Furthermore,  it  contributed  to- 
ward the  popularization  of  law,  and,  in  so  doing,  created  a  certain 
general  state  of  intelligence  hitherto  unknown. 

But,  alongside  these  advantages,  which  have  been  diminishing 
with  time,  defects  inherent  in  these  very  advantages  made  their 
appearance,  and  finally  led  to  a  veritable  crisis  in  the  problem  of 
codified  law.  Codification  (the  truth  is)  opposed  all  evolution  in 
law,  by  not  attending  to  means  of  adjusting  it  to  the  practical 

23 


§  5]  PART   I      READJUSTMENT   OF   LAW  [Chap.    I 

requirements  of  the  future.  As  social  life  was  nonetheless  bound 
to  pursue  its  own  development,  it  necessarily  was  destined  to  come 
into  conflict  with  codified  law.  Now  it  was  the  economic  relations 
between  individuals  that  underwent  the  most  rapid  evolution  dur- 
ing the  last  century.  And  the  Codes,  having  provided  no  means 
of  adjusting  the  law,  became  for  that  reason  an  obstacle  to  com- 
plete economic  development. 

Writers  and  judges,  far  from  seeking  to  remedy  these  defects, 
went  on  making  them  worse.  They  set  out  from  these  two  ideas  : 
that  codification  regulated  the  entire  body  of  the  legal  relation- 
ships which  it  defined,  and  that  the  texts  of  the  Codes  were  unal- 
terable so  long  as  they  were  not  modified  by  other  law.  Therefore, 
it  could  not  devolve  upon  the  judges  and  the  jurists  either  to  moder- 
ate or  to  enlarge,  much  less  create,  juridical  rules.  This  seemed 
to  them  the  price  of  the  security  of  legal  relationships.  Their 
conception  of  codification  filled  them  with  so  exaggerated  a  respect 
for  legal  texts  that  it  became  a  superstition. 

On  the  very  morrow  of  codification  we  find  proof  of  this  state  of 
mind  in  the  explanations  made  by  Bigot  de  Preameneu  to  the 
Legislature  on  August  22,  1807,  of  the  draft  which  was  to  become 
the  law  of  September  3,  1807.  Speaking  on  the  proposal  to  change 
the  title  of  Civil  Code  to  Code  Napoleon,  he  said  :  "  This  is  a  com- 
plete work ;  it  is,  if  I  may  be  allowed  to  use  the  expression,  a  sort 
of  Holy  Ark,  and  for  it  we  will  set  for  neighboring  nations  the  ex- 
ample of  a  religious  respect."  x  Napoleon  himself  felt  this  respect 
for  the  Code.  We  know  his  anger  when  the  first  commentary 
appeared.  Even  in  exile,  he  regarded  his  legislative  achievement 
as  a  hundred  times  more  enduring  than  his  military  conquests. 
We  know  the  celebrated  remark  attributed  to  him  :  "  My  glory 
is  not  to  have  won  forty  battles  :  Waterloo  will  destroy  the  memory 
of  as  many  victories  .  .  .  ,  but  what  nothing  will  destroy,  what 
will  live  eternally,  is  my  ("nil  Code."  2  This  respect  for  the  legal 
text  also  affected  the  teaching  of  law.  The  law  of  22  Ventose, 
year  XII,  required  (Article  2)  that  the  civil  law  be  taught  in  the 
order  of  subject  matter  established  by  the  Code. 

CI)  Commentators.  —  Imbued  with  tins  respect  for  the  legal 
text,  commentators  of  the  Code  not  only  did  not  see  the  trans- 
formal  ions  in  society  which  required  new  legal  regulation,  but  they 
believed  that  a  law  underwent  no  modification  until  corrected  by 

1  Locri,  "  La  legislation  civile,  commereiale  et  criminelle  de  la  France", 
Vol.  I.  P.  I1J. 

-  "  K <-,-it  de  la  eaptivitS",  Vol.  I,  p.  401. 

24 


Chap.    I]  DOMINANT   IDEAS   TO    1850  [§  5 

new  enactment  regulating  the  same  matter.  They  did  not  admit 
that  the  law  was  capable  of  more  or  less  perceptible  transformation 
through  the  influence  of  changes  affecting  society.  More  than 
that,  jural  changes  escaped  them  when  they  were  manifested  by 
new  laws  not  expressly  referring  to  the  civil  law.  Thus  they 
separated  off  and  even  created  a  systematic  contrast  between 
public  law,  notably  administrative  law,  and  private  law,  without 
perceiving  that  administrative  law  was  for  the  greater  part  merely 
a  new  aspect  of  private  law,  whose  principles  it  modified  sometimes 
even  more  profoundly  than  many  statutes  expressly  referring  to 
them. 

In  their  eyes  the  study  of  law,  therefore,  consisted  essentially  in 
a  strict  interpretation  of  legal  texts,  constituting  a  rigorous  se- 
quence of  deductions,  formulated  without  concern  whether  equity 
and  social  utility  were  satisfied.  Their  method  was  scholastic  and 
logical  rather  than  juridical.  Commentators  and  judges  did  not 
need  to  know,  they  said,  the  transformations  in  social  surroundings  ; 
they  might  criticize  the  defects  of  the  law  by  pointing  out  the 
omissions  of  the  legislator,  but  not  by  remedying  them.  They 
were  to  put  aside  social  considerations,  which  have  only  a  subjective 
value,  and,  wherever  their  logic  was  incapable  of  furnishing  a  solu- 
tion, they  were  to  be  guided  rather  by  the  authority  of  the  juris- 
consults than  by  considerations  of  equity.  Criticism  of  existing 
law,  once  incorporated  into  a  text,  was  rather  abstract  than  inspired 
by  the  requirements  of  practice,  and  jurisconsults,  in  their  disdain 
for  the  observation  of  social  facts,  were  far  from  having  the  acute- 
ness  and  the  penetration  of  the  Roman  lawyers,  who,  attentive  to 
the  least  progress  in  social  evolution,  adjusted  all  the  rules  of  law 
to  its  changes.  Thus  the  interpreters  nearly  all  limited  their 
labors  to  a  sterile  commentary  on  the  legal  texts,  without  interest 
in  the  degree  in  which  their  rules  were  adapted  to  social  necessity. 
And  yet  that  is  the  whole  purpose  of  law. 

However  exaggerated  this  worship  of  the  legal  text,  social  evolu- 
tion was  bound  to  force  the  interpreters  of  the  law,  even  without 
their  knowledge,  to  take  account  of  facts ;  under  the  influence  of 
facts,  they  were  to  render  the  law  more  flexible  and  extend  its  field 
of  application.  From  the  very  first  years  following  the  promulga- 
tion of  the  Code,  interpretation  strove  in  vain  to  be  merely  exposi- 
tory. The  legal  text  broadened  constantly  in  proportion  as  other 
social  needs  made  themselves  felt.  Argument  by  analogy  and  "  a 
contrario  "  were  accepted  as  methods  of  strict  interpretation.  In 
so  doing  the  law  was  not  in  reality  interpreted  ;  it  was  stretched  to 

25 


§  5]  PART   I      READJUSTMENT   OF   LAW  [Chap.    I 

cover  cases  for  which  it  had  not  been  made.  Thanks  to  their 
methods,  which  respected  the  letter  of  the  law  only  in  appearance, 
the  interpreter  widened  its  application  or  even  created  juridical 
rules,  building  upon  the  same  principles  which  had  guided  the 
legislator  in  similar  circumstances. 

Under  the  pressure  of  ever  more  imperious  necessities,  jurists 
had  to  expand,  little  by  little  and  even  against  their  will,  their  sys- 
tem of  interpretation.  To  the  expository  method  succeeded  a 
synthetic  system  of  principles,  which,  without  doing  violence  to  the 
legal  text,  made  it  easier  to  render  broader  and  more  flexible  and 
even  to  create  the  juridical  rule  more  or  less  arbitrarily.  Hence- 
forth jurists  regarded,  not  each  article  of  the  Code  by  itself,  but  the 
principles  which  the  legislator  followed  in  regulating  each  institu- 
tion and  which  the  interpreter  inferred  at  need  from  the  whole  body 
of  provisions  governing  the  subject.  The  principles  once  laid 
down,  the  interpreter  drew  from  them  the  consequences  which  they 
potentially  held  and  applied  them  to  cases  not  foreseen  by  the  law. 
This  was  the  favorite  method  introduced  by  Laurent,  for  whom  the 
general  principles  constituted  the  whole  law.1 

This  system  was  in  turn  replaced  by  that  of  juridical  synthesis, 
which  marked  a  progress  over  the  preceding  method.  Broad 
syntheses  uncovered  the  general  objectives  controlling  certain 
subjects ;  knowledge  of  these  objectives  permitted  logical  conse- 
quences to  be  drawn  from  them  which  the  legislator  himself  had 
not  perceived.2 

(2)  Judicial  Interpretation.  —  The  texts  of  the  law  inspired  the 
same  respect  in  the  judge  as  in  the  author.  He  conceived  it  his 
duty  to  apply  them  with  the  utmost  rigor.  As  an  interpreter,  he 
believed  that  his  function  was  no  longer  the  same  as  under  the 
early  law.  He  had  to  insure  respect  for  the  letter  of  the  law,  how- 
ever unjust  and  unpractical  the  solution  to  which  it  led.  His 
functions  were  thus  mechanical :  he  constructed  syllogisms  whose 
major  premise  was  the  legal  text  and  whose  minor  premise  was  the 
particular  case  before  him.  The  conclusion  followed  naturally. 
Were  it  not  so,  he  would  have  felt  that  there  was  no  longer  any 
separation  between  the  legislative  and  the  judicial  powers  and 
that  he  was  in  fact  law  making. 

1  Laurent,  "Cours  elementaire  de  droit  civil",  Vol.  I,  pref.,  §1;  also 
id.,  "  Principos  de  droit  civil",  Vol.  I,  foreword  and  §29;  Beudant,  "Cours 
de  droit  civil  franeais"  (Paris,  1896),  pref.,  pp.  vi  and  vii,  and  introd., 
pp.  1   :;. 

"  For  an  excellent  analysis  of  these  methods,  cf.  Geny,  "Methode 
d'interprgtation  <  I  sources  en  droit  prive  positif  ",  §§  S-30. 

2G 


Chap.    I]  DOMINANT  IDEAS   TO    1850  [§  6 

Such  then,  in  the  period  following  codification,  was  the  concep- 
tion which  the  judicial  power  held  of  its  office,  —  a  conception 
contrary,  indeed,  to  that  of  the  drafters  of  the  Code,  for  they,  as  the 
report  accompanying  the  draft  and  Article  4  prove,  attributed  no 
such  subordinate  role  to  the  judge.1 

Thus,  with  the  changing  conditions  of  life,  came  an  ever-increas- 
ing want  of  adjustment  of  the  legal  text  to  social  needs.  The  judge 
could  not  fail  to  note  this  state  of  things.  He  therefore  borrowed 
his  system  of  interpretation  from  the  legal  writers,  and  thus  suc- 
ceeded, thanks  to  a  certain  subtlety  of  reasoning,  in  broadening 
the  statute,  in  rendering  it  more  flexible,  and  even  in  creating  law. 
Thus  it  was  that  certain  institutions  came  to  be  developed  entirely 
by  the  courts,  without  even  any  point  of  support  in  the  Code's  text. 
We  may  cite  as  instances  the  law  of  life  insurance  and  the  inaliena- 
bility of  the  marriage  portion  composed  of  movables.  It  even  hap- 
pened that  the  judges,  more  sensitive  than  the  jurists  to  the  neces- 
sity of  satisfying  social  requirements,  outstripped  the  latter  and 
so  drew  away  from  their  leadership.  This  explains  the  disagree- 
ment upon  so  many  points  between  text-book  and  judicial  decision. 

The  function  of  the  judge,  in  the  face  of  the  codified  text,  was, 
therefore,  not  easy  to  fill.  He  could  not  entirely  respect  the  letter 
of  the  law :  social  requirements  rebelled ;  but  neither  might  he 
adjust  the  legal  rules  to  these  needs  :  the  formalistic  nature  of  the 
texts  prevented  it.  We  here  touch  upon  the  crucial  aspect  of  the 
problem  which  is  the  object  of  this  study. 

§  6.  Influence  of  Codification  upon  the  Philosophy  of  Private 
Law  and  upon  General  Juridical  Scionce.  —  The  social  influence  of 
the  Code  Napoleon  was  thus  considerable.  And  upon  the  ideas  of 
law  and  justice,  upon  legal  philosophy,  and  upon  jural  science  in 
general,  its  influence  has  not  been  less. 

After  the  codification,  legal  philosophy  broke  away  from  the 
social  philosophy  of  the  1709  s  and  returned  to  the  idea  of  natural 
law  of  the  philosophers  of  the  1600  s. 

(1)  Natural  Law.  —  Legal  relationships  were  now  not  studied 
with  regard  to  the  changes  which  time  and  space  produced  in  them, 
but  as  though  derived  from  human  nature  and  consequently  always 
identical.  Man  was  no  longer  looked  upon  as  a  being  of  tempera- 
ment and  tendencies  of  his  own,  obliged  to  live  and  suffer  under  the 
influences  of  a  given  social  environment ;  he  became  an  abstraction 
upon  whom  the  ambient  of  life  about  him  had  no  hold. 

1  Cassation,  May  25,  1814;  Dalloz,  "Repertoire",  under  "Effets  de 
commerce",  §  237,  note  1. 

27 


§  6]  PART   I      READJUSTMENT   OF   LAW  [Chap.    I 

The  method  of  studying  natural  law  was,  consequently,  essen- 
tially rationalistic.  Contrary  to  the  philosophers  of  the  1700  s,  it 
neither  gave  consideration  to  the  observation  of  society,  nor  to  any 
well-determined  ideal,  but  simply  to  the  metaphysical  speculations 
of  the  writers  who  devoted  themselves  to  its  study.  Meanwhile 
the  latter  claimed  that  the  rules  which  they  elaborated  independ- 
ently of  any  observation,  and  which  rested  upon  no  foundation  of 
reality,  were  derived  from  man's  nature.  According  to  them,  the 
natural  laws  which  they  thought  they  were  discovering,  were 
universal  and  invariable;  they  reflected  the  absolute  in  morals, 
the  absolute  in  justice,  and  positive  law  should  emanate  from  them, 
whether  it  be  a  question  of  legislation  or  interpretation.  This 
method  condemned  them  to  a  spirit  of  routine.  Far  from  furnish- 
ing, as  they  claimed,  a  rule  for  legislator  and  jurist,  they,  in  reality, 
only  steeped  themselves  in  the  essentially  individualistic  atmos- 
phere of  those  classes  and  followed  them.  At  first,  indeed,  they 
examined  only  the  legal  relationships  expressly  covered  by  the 
Code,  and  went  so  far  as  to  follow  the  legislator  in  the  order  and 
exposition  of  the  subject  matter.  Later  they  developed  their 
theory  of  innate  rights,  accepting  the  middle-class  property 
owner's  point  of  view  and  contradicting  their  own  conclusions. 
The  right  to  live  seemed  innate,  but  not  the  right  to  work ;  they 
proclaimed  liberty  of  conscience,  but  not  the  economic  independ- 
ence of  the  individual ;  they  recognized  in  the  ownership  of  land 
the  same  triple  character  embodied  in  the  Code ;  and  so  on. 

(2)  The  Catholic  Authors.  —  Though  a  devotee  of  routine,  legal 
philosophy  was  not  wholly  respectful  of  positive  law.  Upon  cer- 
tain points  it  was  revolutionary.  Of  the  philosophers,  those  who 
adhered  to  the  Catholic  dogmas  should  be  distinguished  from  those 
who  did  not.  The  distinction  is  necessary,  for  the  Catholic  Church 
has  itself  defined  several  points  of  natural  law,  notably  in  relation 
to  public  law.1  Catholic  authors  aligned  themselves,  therefore, 
with  the  interpretation  given  these  matters  by  the  Church;  but 
so  soon  as  a  question  arose  upon  points  left  unsettled  by  the  Church, 
the  controversies  recommenced.2  These  writers  not  only  denied 
the  imprescriptible  sovereignty  of  the  people,  since  they  claimed 
thai  power  to  be  derived  from  (iod,  but  they  also  went  so  far  as  to 
affirm  that  such  positive  law  as  was  contrary  to  divine  law  or  such 
as  was  not   inspired  by  the  common  good  of  those  governed,  could 

1  For  a  definition  of  these  points,  cf.  Vareilles-Sommihres,  "Les  principes 
fondamentaux  <lu  droit"  (Paris,  ISS9),  pp.  (it),  207-272,  343-344. 
'Id.,  pref.,  §  VII. 

28 


Chap.    I]  DOMINANT   IDEAS   to    1850  [§  6 

have  no  force.  The  individual  not  only  had  the  right,  but  even  at 
times  the  duty,  to  disobey  it.1 

(3)  The  Legal  Philosophy  of  the  1800  s.  —  The  French  legal 
philosophy  of  the  1800  s  had  neither  the  traits  nor  the  useful  results 
of  the  social  philosophy  of  the  1700  s.  It  was  neither  original  nor 
idealistic  in  the  true  sense  of  that  word ;  and  it  was  hurtful. 

It  was  not  original,  in  that  it  was  visibly  influenced  by  the  doc- 
trines of  the  Code,  by  the  civilian  jurists  of  the  prior  era,  and  by  the 
German  philosophers  of  the  1700  s,  more,  perhaps,  than  by  the 
French  philosophers  of  the  same  period.  It  was  not  idealistic,  in 
that  it  did  not  aim  to  reshape  legal  relationships  in  agreement  with 
the  new  principles  derived  from  observation  of  the  transformations 
in  social  life.  Its  point  of  departure  was  always  individualism ; 
and,  setting  out  from  this  postulate,  what  it  extolled  as  its  ideal 
was  a  result  of  pure  speculation,  often  contradicted  by  reality  or 
the  tendencies  of  society.  It  demanded,  for  instance,  that  paternal 
power  be  strengthened  rather  than  relaxed,  as  modern  laws  were 
constantly  doing  under  the  irresistible  impulse  of  society  in  that 
direction.  It  was  hurtful,  for,  since  it  was  not  truly  ideal,  it  served 
only  to  deceive  the  legislator  and  the  jurist  by  continually  placing 
before  them  as  an  ideal  the  old  existing  regime  of  individualism, 
fortified  by  theories  that  were  inimical  to  social  evolution.  The 
philosophers  imbued  the  minds  of  the  jurists  yet  more  profoundly 
with  scholastic  methods ;  they  strengthened  them  in  their  love  of 
logic,  in  their  scorn  of  observation  of  social  facts,  and  in  their 
resistance  to  changes  brought  about  by  the  life  of  society ;  for  they 
pictured  such  transformations  as  mistakes  which  could  be  corrected 
by  a  strict  enforcement  of  legal  texts. 

Summing  up  the  general  comparison  between  the  influence  of  the 
philosophy  of  the  1700  s  and  of  that  of  the  1800  s  over  the  law  and 
the  lawyers,  we  see  that  the  ideal  of  the  philosophy  of  the  1700  s 
was  individualism,  —  a  system  contrary  to  that  existing  at  the 
period  and  growing  as  much  out  of  pure  speculation  as  out  of  the 
political  and  social  requirements  of  the  time.  But  the  philosophers 
of  the  1800 s  proceeded  in  quite  an  opposite  fashion;  their  ideal 
continued  to  be  an  antiquated  regime,  which  had  served  its  time ; 
and  their  theories,  which  only  aimed  to  bolster  up  that  regime  or  to 
retouch  it  here  and  there,  were  inspired  neither  by  pure  reason  nor 
by  the  requirements  of  political  and  social  surroundings,  but  solely 
by  empirical  views  concerning  mankind. 

1  Vareilles-Sommieres,  "  Les  prineipes  fondamentaux  du  droit"  (Paris, 
1889),  p.  11. 

29 


§  6]  PART   I      READJUSTMENT   OF    LAW  [Chap.    I 

(4)  The  Popular  Mind.  —  Codification  also  exercised  an  influ- 
ence upon  the  jural  mind  in  general.  Jurists  and  philosophers 
tortured  their  conceptions  of  law,  justice,  and  equity.  Philosophy 
believed  that  these  were  three  different  ideas,  and  difficult  indeed  of 
attainment.  Jurists  found  them  opposed  to  one  another,  main- 
taining that  there  was  no  other  law  than  that  contained  in  the  rules 
of  the  Code.  Neither  declared  the  three  notions  identical  or 
viewed  them  at  their  true  angle.  They  are,  indeed,  only  the  faith- 
ful image  of  the  requirements  of  social  life,  and  exist  only  to  satisfy 
them ;   their  rules  are  necessarily  founded  upon  those  needs. 

Philosophers  and  jurists,  furthermore,  rooted  in  men's  minds  the 
individualistic  theory  which  is  at  the  bottom  of  the  Code,  and 
which  they  esteemed  the  embodiment  of  law  and  reason.  Hence- 
forth, in  the  life  of  the  law,  the  only  question  was  to  be  that  of  the 
rights  and  obligations  of  the  individual ;  the  notion  of  duty,  as 
tempering  right  was,  indeed,  put  forward  by  the  philosophers,  but 
it  was  absent  from  jural  life.  The  individualistic  idea  was  so 
deeply  anchored  in  the  popular  conscience  that  it  was  considered 
just  to  exercise  a  right  recognized  by  law,  even  when  the  exercise  of 
the  right  injured  another  or  society.  Thus  the  current  expression 
"  I  have  a  right  to  do  it,"  was  often  used  as  a  final  argument  against 
any  attempt  to  limit  the  exercise  of  some  right  which  could  not  be 
absolute  without  harming  general  interests.  In  the  same  way,  it 
was  thought  necessary  to  obey  only  the  formal  injunctions  of  the 
law.  Thus  men  said  :  "  I  am  not  bound  to  do  it  "  when  it  was  a 
question  of  an  act  in  which  society  might  be  in  the  highest  degree 
interested,  but  which,  nevertheless,  the  law  did  not  command. 

(5)  The  Science  of  Law.  — ■  Lastly,  philosophers  and  jurists 
exercised  an  influence  upon  the  science  of  law  in  general,  each  of 
them  formulating  a  different,  though  equally  abstract,  idea  of  law. 
They  came  to  believe  that  the  study  of  law  could  exist  only  if 
based  upon  one  of  their  conceptions.  That  was  why  (metaphysics 
an  1  exegesis  excepted)  they  neglected  every  other  study,  notably 
the  history  of  legal  institutions,  and  "  a  fortiori  "  the  study  of 
political  science,  which  they  held  to  have  no  relation  to  law.  Legal 
science  was  thus  manifestly  in  a  position  of  inferiority  as  compared 
to  the  period  prior  to  the  codification,  when  jurists  and  philoso- 
phers, entertaining  a  broader  conception  of  it,  worked  together  to 
keep  law  abreast  with  ethics  and  justice  and  aided  to  make  it 
attain  a  well-defined  ideal. 


30 


CHAP.    II]  DOMINANT   INFLUENCES   AFTER    1850 


:§i 


Chapter  II 

DOMINANT  LEGAL  INFLUENCES  OF  THE  SECOND  HALF 
OF  THE   CENTURY 

By  Alexander  Alvarez  1 


§  1.     The  Civil  Code  as  Judged  by 
Public  Opinion  in  the  1800  s. 
(1)  Historians.         (2)      Legal 
Philosophers.     (3)     So- 
ciological  Philosophers. 
(4)  Other  Schools. 
§  2.     Attempts     to     Reform     the 
Science  of  Private  Law. 
(1)  Charles     Comte,     Labou- 
laye,  Courcelle-Seneuil. 
(2)  Reforms  of  Method. 
§  3.     Renascence  in  Legal  Science. 
(1)  German  Legal  Literature 
of       the       1800  s.     (2) 
Causes  of  Renascence  in 
Countries    of    Codifica- 
tion. 
§  4.     Modern  Trends  of  Change  in 

the  Law. 
§  5.     Juridical  Effects  of  Political 
Changes. 


(1)  Upon  International  Public 
Law.      (2)  Upon   Inter- 
national   Private    Law. 
(3)  Upon  Internal  Pub- 
lic Law. 
§  6.     Juridical  Effects  of  Economic 
Changes. 
(1)  Expansion  of  Civil  Law. 

(2)  Labor     Legislation. 

(3)  Other    Future    Ef- 
fects. 

§  7.     Juridical  Effects  of  the  New 
Social  Doctrines. 

§  8.     Solidarity. 

§  9.  JuridicalEffectsof  Democracy, 
(1)  Upon  the  Relations  of 
Husband  and  Wife. 
(2)  Upon  the  Legal  Re- 
lations of  Parent  and 
Child.  (3)  Upon  the 
Illegitimate  Child. 


§  1.  The  Civil  Code  as  Judged  by  Public  Opinion  in  the  1800  s.  — 
What  appraisal  and  criticism  did  the  French  Civil  Code  receive 
during  the  1800s  in  point  of  substance  and  method?  This  is  our 
next  inquiry.  There  have  been  different  verdicts,  according  to 
the  science  which  the  authors  of  such  judgments  have  professed. 
We  must  distinguish  according  as  we  deal  with  economist,  his- 
torian, philosopher,  or  jurist. 

1  [The  present  Chapter  represents  pp.  73-146  (with  a  few  omissions)  of 
the  same  author's  "Une  nouvelle  conception  des  etudes  juridiques  et  de  la 
codification  du  droit  civil"  (Paris,  1904),  from  which  the  foregoing  Chapter 
was  taken. 

The  remainder  of  this  work,  setting  forth  the  author's  views  upon  the 
problems  of  legal  method  pressing  for  solution  in  the  immediate  future, 
is  translated  in  "The  Science  of  Legal  Method",  being  Vol.  IX  of  the 
Modern  Legal  Philosophy  Series  (Boston,  1917).  —  Ed.] 

31 


§  1]  PART    I      READJUSTMENT   OF   LAW  [Chap.    II 

(1)  Historians.  —  Historians  made  of  the  Code  a  living  incar- 
nation of  Napoleon.  They  regarded  it  as  almost  exclusively  his 
work;  and  their  judgment  has  varied  according  to  the  sympathy 
which  Napoleon  inspired.  Edgar  Quinet,  who  saw  clearly  that  a 
civil  code  is  composed  of  "  underlying  principles,  general  rules, 
from  which  it  derives  its  character",  was  a  great  admirer  of  the 
draft  presented  by  Cambaceres  to  the  Convention  in  1793 ;  and 
admitted  that  its  main  general  rules  were  adopted  almost  literally 
from  the  Code  of  the  Convention  into  the  Code  of  the  year  XII. 
In  his  eyes  the  Code  of  the  Convention  alone  was  truly  original ; 
the  present  Code  was  but  a  more  or  less  successful  expansion  of  it.1 
Other  historians,  on  the  other  hand,  were  resolute  champions  of 
Napoleon  and  his  work,  for  example,  Thiers.2 

(2)  Legal  Philosophers.  —  Among  the  philosophers,  the  jurists 
must  be  distinguished  from  the  sociologists.  We  stated  earlier 
that  those  who  were  concerned  with  the  philosophy  of  law  simply 
fell  under  the  spell  of  French  legislation,  and  rallied  to  the  same 
system  which  inspired  the  text  writers.  With  regard  to  the  material 
treated  by  the  Code,  their  criticisms  of  positive  legislation  were 
animated  by  speculations  which  swept  away  all  considerations  of 
social  evolution.  They  made  no  effort  to  conform  to  its  advance, 
but  endeavored  to  react  against  it  by  recourse  to  legislation. 

With  the  philosophers  should  also  be  numbered  the  theologians, 
who  studied  the  Civil  Code  from  the  point  of  view  of  religion  and 
the  canon  law.3  Their  theory  was  the  same  as  the  philosophers', 
to  whose  influence  they  were  subject  and  who  in  return  came  to 
feel  theirs.  They  were,  consequently  (except  for  certain  matters 
like  civil  marriage  and  divorce),  influenced  by  the  doctrines  of  the 
Code ;  it  gave  them  pleasure  to  note  the  harmony  between  its 
precepts  and  those  of  theology.4 

(3)  Sociological  Philosophers.  —  As  to  the  sociological  philos- 
ophers, their  views  were  more  radical.  And  the  reason  was 
simple.  The  social  doctrines  of  the  philosophers  had  in  great 
part  prepared  the  French  Revolution.  But  in  its  turn  the  rev- 
olutionary influence  had  reacted  upon  the  direction  and  nature  of 
the  social  doctrines  appearing  later. 

1  "La  Revolution"  (ed.  commemorative  of  1789),  Vol.  II,  bk.  XV,  §  11. 
"Histoire  du  Consulat  et  de  l'Empire",  especially  Vol.  Ill,  p.  344; 
Vol.  XX,  pp.  723  726. 

■■  Goussi '.  "  Le  ( lode  civil  comments  et  explique*  dans  ses  rapports  avec 
la  theologie  morale  e1  le  Droil  canon"  (1843);  Allegro,  "Le  Code  civil 
comi  i-  ;n'  .;i  ['usage  du  clerge  dans  ses  rapports  avec  la  theologie  morale, 
le  Droil  canon  el  ('economic  politique"  (Paris,  1888). 

A  AUkgre,  ibid.,  Vol.  I,  foreword,  p.  VII. 

32 


Chap.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  1 

The  first  generation  of  the  1800  s,  that  prior  to  1830,  genuinely 
believed  that  the  Old  Regime  had  crumbled  in  its  entirety  and 
that  their  task  was  either  to  restore  it  or  to  reconstitute  society 
upon  new  foundations.  That  was  the  problem  which  all  the 
philosophers  of  the  period  set  themselves,  being  all  agreed  that 
society  should  be  rebuilt.1  Without  in  any  degree  pretending  even 
to  sketch  the  social  philosophy  of  the  1800  s  in  its  relation  to  civil 
law,  it  will  be  enough  to  indicate,  along  their  general  lines,  the  legal 
conceptions  of  the  sociologists  who  distinguished  themselves  more 
or  less  and  who  belonged  to  no  well-defined  school. 

Their  method  of  studying  society  was  like  that  of  the  philosophers 
of  the  1700  s.  It  was  the  method  of  rationalistic  and  idealistic 
observation.  They  set  out  from  an  observation  of  past  and  present 
society  and  reached  a  well-defined  idealism  wherein  the  specula- 
tions of  pure  reason  played  no  small  role.  This  was  especially 
true  of  the  so-called  theocratic  school,  several  of  whose  members 
wrote  at  the  end  of  the  1700  s.  Its  disciples  contended  forcefully 
against  the  rationalism  of  the  philosophers  of  the  1700  s,  though 
they  set  up  one  of  their  own.  It  was  thus  pervaded  with  their 
spirit,  though  combating  them.2  The  same  was  true,  but  in  a  less 
degree,  of  the  positivists,  though  Auguste  Comte  and  his  school 
claimed  to  make  the  observation  of  past  society  the  distinguishing 
feature  and  the  basis  of  sociology. 

All  the  sociological  philosophers  of  the  1800  s  had,  nevertheless, 
one  merit  which  cannot  be  too  greatly  praised  :  they  struggled 
against  that  individualism,  in  the  double  sense  of  the  word,  which 
was  consecrated  in  the  Code ;  their  idealism  closely  united  law 
with  morals,  justice  with  equity.  They  made  morals  the  true  and 
ultimate  science,  and  they  demanded  that  the  individual,  before 
claiming  his  rights,  should  be  filled  with  a  sense  of  his  duties  to- 
wards humanity.  All  these  ideas  were  set  forth  most  clearly  in 
the  philosophy  of  Comte.  The  social  doctrines  of  the  philosophers 
of  the  1800s  dealing  directly  with  codified  law  were  those  of  the 
theocratic  school  of  Saint-Simon,  Auguste  Comte,  Fourier,  and 
Proudhon. 

The  theocrats  demanded  a  reaction  against  the  political  doc- 
trines of  the  1700  s,  and  their  theories  came  to  a  complete  negation 
of  individualism.     Without  aiming  to  show  to  what  point  their 

1  Levy-Bruhl,  "La  philosophie  d' Auguste  Comte"  (Paris,  1900), 
introd.    §  1. 

2  Henri  Michel,  "L'idee  de  l'Etat"  (Paris,  1896),  bk.  I,  chap,  i,  pp. 
129-133. 

33 


§  1]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

doctrine  was  or  was  not  a  reaction  against  the  philosophies  of  the 
1700  s,  it  is  enough  if  we  observe  that  Maistre  in  1810  and  Bal- 
lanche  in  1818  looked  upon  statutory  law  fundamentally  in  the 
same  way  as  did  Rousseau.  The  difference  was  all  in  the  form. 
For  Rousseau,  statutory  law  expressed  the  will  of  the  people ;  for 
Maistre  and  Ballanche,  it  expressed  the  will  of  God.1 

Saint-Simon  and  Auguste  Comte  had,  as  we  know,  opinions 
which  were  closely  related  upon  several  points.  Both  professed 
a  great  disdain  for  law  as  up  to  then  conceived,  and  perhaps  a 
still  greater  disdain  for  jurists.  They  also  combated  the  notion  of 
individual  liberty,  opposing  to  it  the  liberty  of  social  authority. 
As  early  as  1816  Saint-Simon  made  his  challenge  to  law  and  jurists. 
Codes  and  jurists  were  the  representatives  of  a  past  age  of  egoism. 
In  his  eyes,  there  was  no  law  in  the  sense  ordinarily  attributed  to 
the  word.  There  was  merely  interest,  properly  understood,  and 
he  called  for  an  "  academy  "  that  should  be  charged  with  drafting 
the  "  Code  of  Interests."  Saint-Simon  was  equally  severe  with 
jurists.  He  remonstrated  especially  against  their  opinions  when 
imbued  with  existing  and  traditional  law,  and  against  their  inabil- 
ity to  grasp  social  transformations  and,  consequently,  the  new  bases 
upon  which  law  ought  thenceforth  to  rest.  Their  theories  no 
longer  corresponded  with  the  needs  of  modern  society.  Jurists, 
moreover,  exercised  an  injurious  influence  upon  future  legislation. 
They  contented  themselves  with  partial  retouches  of  old  laws  when 
the  then  state  of  society  demanded  an  entire  remaking.  And 
lastly,  Saint-Simon  put  forth  some  exceedingly  interesting  ideas 
upon  the  right  of  property.2 

Auguste  Comte  had  himself  the  same  distrust  of  law  and  lawyers. 
So  predominant  was  the  notion  of  duty  in  his  system  that  he  even 
denied  the  conception  of  law  as  accepted  to-day.  It  seemed  to  him 
that  the  notion  should  disappear  in  a  positive  state  of  the  universe, 
since  it  was  metaphysical.  The  idea  of  law,  he  said,  "  is  false  as 
well  as  immoral,  for  it  presupposes  the  absoluteness  of  the  individ- 
ual." Bold  and  revolutionary  as  were  Comte's  doctrines  con- 
cerning law  by  themselves,  he  ceased  to  be  original,  it  is  worthy  of 
remark,  when  he  studied  the  family.     Here,  on  the  contrary,  he 

1  For  the  political  doctrine  of  the  theocrats,  cf.  Henri  Michel,  op.  cit., 
bk.  I.  chap,  i,  pp.  108  133. 

-  Saint-Simon,  "  L 'Industrie  ",  in  "  (Euvres  de  Saint-Simon  et  d'Enfan- 
tin",  Vol.  XIX,  pp.  218-249;  "Vues  sur  la  propriete  et  la  legislation" 
(ed.  Olinde  Rodrigues). 

mte,  "Cours  de  philosophie  positive",  Vol.  VI,  p.  480.  For  the 
true  effect  of  (  'mule's  doctrine  upon  law,  cf.  Levy-Bruhl,  "  La  Philosophie 
d'Auguste  Comte"  (Paris,  1900),  pp.  375-378. 

34 


Chap.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  1 

was  quite  frankly  under  the  influence  of  the  conception  embodied 
in  the  Code.  Marriage,  in  his  eyes,  was  one  of  the  necessary  bases 
of  all  society.  He  consequently  opposed  everything  which  tended 
to  weaken  marriage  and  to  disorganize  the  family,  and  as  a  result 
society.  Thus  he  came  to  condemn  divorce.  In  the  relationship 
of  husband  and  wife  he  admitted  the  subordination  of  the  wife 
to  the  husband,  because  he  considered  woman  inferior  to  man 
from  the  intellectual  point  of  view.  He  also  demanded  the  strict 
subjection  of  the  minor  son  to  the  father.1  John  Stuart  Mill 
was  of  opposite  opinion  upon  these  last  points,  and  that  is  one  of 
the  reasons  why  he  bjoke  with  the  positive  philosophy  of  Comte. 

Fourier  and  Proudhon  were  also  occupied  with  the  conception 
of  law.  The  former  founded  the  idea  of  law  upon  free  association 
in  his  theory  of  the  family ;  he  went  so  far  as  to  admit  polygamy 
and  free  love.2  Proudhon  founded  law  upon  the  sentiment  of 
human  dignity.  His  views  upon  property  are  well  known,  as  also 
the  influence  which  they  exercised. 

(4)  Other  Schools.  —  It  remains  to  note  certain  general  doctrines 
which  did  not  belong  to  any  particular  philosophy,  but  which  by 
the  greater  or  less  success  which  they  enjoyed  exercised  a  real 
influence  upon  legal  and  social  conceptions.  These  doctrines 
showed  a  double  tendency.  Some  desired  to  confirm  or  simply 
modify  the  existing  legal  system;  others  desired  a  more  or  less 
radical  reaction.  The  former  were  the  liberal  doctrines ;  the 
latter  the  democratic  and  socialist  doctrines. 

The  distinctive  feature  of  the  liberal  school,  as  also  in  the  case 
of  the  theorists,  was  that  it  set  up  the  individual  in  opposition  to 
the  State.  This  was  contrary  to  the  ideas  of  the  philosophers  of 
the  1700  s,  who  not  only  did  not  admit  this  conflict,  but,  indeed, 
believed  in  the  harmony  of  the  two  points  of  view.  The  logical 
consequence  of  this  conception  of  the  relations  between  the  individ- 
ual and  the  State  was,  we  should  emphasize,  the  perpetuation 
of  all  the  inequalities  existing  in  fact  between  men.3  Not  only 
did  this  school  take  no  stand  against  the  body  of  legislation  as  a 
whole,  but,  on  the  contrary,  it  set  it  up  more  solidly,  though  tem- 
pering that  individualism  which  was  the  basis  of  the  Code.  To 
this  school  should  be  assigned  the  orthodox  economists.  They 
set  out  from  the  same  paint  of  view :  they  opposed  the  individual 

1  Comte,  op.  cit..  Vol.  TV,  lesson  50. 

-  Fourier,  "Theorie  des  quatre  mouvements",  pp.  147,  169,  192,  193; 
cf.  "(Euvres completes"  (3d  ed.,  1846),  Vol.  I,  pp.  110  et  seq.,  125-126, 140- 

3  Cf.  Henri  Michel,  op.  cit.,  bk.  Ill,  chaps,  i,  u,  in,  vn. 

35 


§  1]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

to  the  State.  The  logical  consequence  of  their  doctrine  and  their 
influence  upon  legislation  was  the  same  as  we  have  noted  in  the 
case  of  the  liberal  school. 

The  democratic  school,  in  both  politics  and  law,  was  moved  by 
the  sentiment  of  the  interests  of  humanity.  It  believed  that  it  fell 
to  the  State  to  interfere  to  bring  equality  and  justice  into  social 
relations.  From  1S30  to  1848  it  was  not  always  easy  to  distin- 
guish with  precision  between  this  and  the  socialist  school.  In  their 
doctrines  as  in  the  men  who  professed  them,  they  were  singularly 
alike.  They  may  be  distinguished,  however,  by  the  fact  that 
among  the  representatives  of  the  democratic  school  some  defended 
private  ownership,  like  Tocqueville  and  Lamartine,  while  the  other 
school,  though  admitting  in  principle  the  possibility  and  even  the 
utility  of  social  reform  (as  was  true  of  Ledru-Rollin),  was  first  and 
foremost  interested  in  the  political  organization  of  society.1 

The  rise  of  democracy  wrought  great  changes,  not  only  of  a  po- 
litical but  also  of  a  legal  nature,  as  we  shall  presently  see.  The 
spirit  of  democracy  not  only  penetrated  the  opinions  of  writers 
and  of  courts ;  it  marked  especially  the  beginning  of  a  new  body 
of  legislation,  of  a  spirit  and  tendency  quite  opposed  to  those  of 
the  Code.  We  shall  later  sketch  it  in  broad  lines.  Tocqueville 
had  already  presaged  the  influence  which  democracy  would  exer- 
cise upon  law  when  he  said  that  the  aim  of  democratic  legislation 
was  more  useful  to  humanity  than  that  of  aristocratic  legislation.2 

As  to  the  socialistic  school,  its  origins,  divisions,  the  tendencies 
of  each  of  its  groups,  its  force  of  expansion  among  the  popular 
masses,  —  all  these  are  well  enough  known  to  make  needless  even 
a  brief  summary.  Later  we  shall  see  its  influence  upon  the  new 
legislation. 

Alongside  the  foregoing  doctrines,  which  constituted  a  more  or 
[ess  powerful  reaction  against  codified  legislation,  we  must  men- 
tion the  individual  efforts  of  a  few  economists  which  tended  to 
moilify  certain  points  of  the  Code  which  they  found  deserving  of 
criticism.  It  will  suffice  to  name  the  best  known  among  them. 
First,  Pellegrino  Rossi,  of  the  classical  school.  He  was  first  in 
France  to  draw  attention  to  the  inadequacy  of  the  economic  regula- 
tions contained  in  the  Napoleonic  Code.  He  declared  in  substance 
thai  tin'  (Ode  had  appeared  at  the  close  of  the  social  revolution, 
biit  not  of  (lie  economic  revolution,  which,  on  the  contrary,  was  to 
follow.     Therefore,  though  the  Code  might  have  regulated  rela- 

1  Henri  Michel,  "//.  cit.,  bk.  Ill,  chap.  m. 
Tocqueville,  "  !)<•  la  democratic  on  Amerique",  Vol.  II,  chap.  vi. 

36 


Chap.    II]  DOMINANT  INFLUENCES  after   1850  [§  2 

tionships  based  upon  the  consequences  of  the  former,  it  could  not 
have  known  the  results  of  the  latter.  There  was,  then,  with 
blame  to  none,  a  deficiency  in  the  law  demanding  satisfaction,  a 
harmony  to  be  reestablished  between  private  law  and  the  economic 
conditions  of  the  time.  A  bold  but  wise  organization  of  indus- 
try, commerce,  transportation,  and  credit  was  the  complementary 
legislation  which  the  then  social  conditions  imperiously  demanded. 
To  attain  this,  it  was  enough,  he  thought,  to  adopt  laws  on  special 
subjects  which  might  be  incorporated  into  the  Code.1 

The  works  of  Le  Play  should  also  be  particularly  mentioned,  for 
they  gave  rise  to  a  school.  This  economist  claimed  to  combat  the 
evils  of  society  by  restoring  the  authority  of  the  father  in  the 
family  and  that  of  the  employer  in  the  shop.  To  this  end  he  aimed 
to  keep  the  family  unity  intact  by  conferring  upon  the  father  the 
right  of  disposing  by  will  and  by  establishing  the  principle  of  the 
indivisibility  of  his  land  upon  his  death. 

$  '2.  Attempts  to  Reform  the  Science  of  Private  Law.  —  The 
social  transformations,  the  rise  and  development  of  new  doctrines, 
the  progress  made  in  the  political  and  social  sciences  and  in  methods 
of  observation,  exercised  practically  no  influence  upon  the  minds 
of  jurists,  any  more,  indeed,  than  upon  juridical  studies,  during 
the  1800  s.  By  their  conception  of  codification  and  its  principles, 
jurists  were  reduced  to  the  part  of  mere  interpreters ;  and  this 
they  have  always  esteemed  their  proper  role  since  that  period, 
until  recently.  When  they  criticized  the  law,  they  always  did  so 
from  the  point  of  view  of  the  logic  of  its  principles  or  from  the 
point  of  view  of  natural  law;  they  scarcely  ever  looked  at  the 
questions  from  a  distance,  or  endeavored  to  take  account  of  the 
new  requirements  made  evident  by  the  changes  of  social  life.2 

1  Rossi,  "Observations  sur  le  Droit  civil  francais  considere  dans  ses 
rapports  avec  l'etat  economique  de  la  soeiete",  in  "Revue  de  Legislation 
et  de  Jurisprudence"  (1840),  Vol.  XI,  pp.  1-29. 

-  Exception  should  be  made  of  Batbic,  who  criticized  the  Code  and 
added  concrete  programs  of  reform  in  a  series  of  articles,  "Revision  du 
Code  Napoleon",  which  were  the  occasion  of  a  great  controversy  with 
<  /',  in  "  Revue  critique  de  Legislation  et  de  Jurisprudence",  Vol. 
XXVIII,  pp.  1 25-162,  308-364;  Vol.  XXIX,  pp.  116-167  ;  Vol.  XXX,  pp. 
")()  fit,  12S  1  IS,  213-231,  322-346,  402^36.  Cf.  Hue,  ibid.,  Vol.  XXX,  pp. 
346  364. 

With  Batbie  should  be  cited  Emile  Accolas,  who  criticized  the  Napo- 
leonic Code  with  great  breadth  of  mind  from  two  aspects.  He  first 
charged  it  with  being  a  compilation  without  method,  unity,  or  ideal; 
overcharged  with  detail  and  full  of  omissions;  with  being  a  compromise 
of  contradictory  principles,  where  the  most  contrary  philosophical  and 
political  systems  are  met  with,  wherein  not  a  single  economic  doctrine 
can  lie  found  ;  and  finally  as  obstructive  of  the  development  of  democracy. 
Cf.  "Necessite  de  refondre  l'ensemble  de  nos  Codes  et  notamment  le 

37 


§  2]  PART   I      READJUSTMENT    OF   LAW  [Chap.    II 

The  study  of  the  Code  progressed  only  from  the  point  of  view 
of  method,  and  that  progress  was  largely  due,  as  we  said  earlier, 
to  the  requirements  of  practice. 

(1)  Charles  Comte;  Laboulaye ;  Courcelle-Seneuil.  — ■  Certain 
jurists  of  authority,  however,  made  efforts  during  the  1800  s,  to 
improve  the  science  of  law  in  general,  and  in  particular  the  study 
of  the  Civil  Code.  And  in  recent  years  (hardly  within  our  pur- 
view to  describe)  a  genuine  renascence  has  taken  place  in  this  field. 
Among  those  who  strove  to  improve  legal  science,  especially  that 
of  the  Code,  during  the  first  three-quarters  of  the  1800  s,  from 
another  point  of  view  than  that  of  method,  must  be  named  Charles 
Comte,  Laboulaye,  and  Courcelle-Seneuil.  Each  of  the  three 
acted  under  distinct  influences :  the  progress  of  natural  science 
through  the  method  of  observation,  the  progress  of  juridical  study 
in  Germany,  and  the  progress  of  social  science.  None  of  the  three 
was  exclusively  a  jurist. 

In  1826  Charles  Comte,  a  jurist  and  publicist,  impressed  by  the 
superiority  of  the  method  of  observation  in  the  physical  sciences 
and  by  the  defects  of  the  deductive  method  in  the  study  of  the 
moral  sciences,  attempted  to  regenerate  law  by  the  method  of 
observation  and  by  its  aid  to  discover  the  laws  according  to  which 
nations  prosper,  decline,  or  remain  stationary.1  But  his  subject 
was  sociological  rather  than  legal.  Comte  was  a  forerunner  of  the 
sociologists,  and  his  work,  like  that  of  other  sociologists,  lacked 
precision :  it  was  too  exclusively  speculative  to  lead  to  any  result 
in  the  science  of  law. 

In  1839  Laboulaye  drew  attention  to  the  very  special  stimulus 
that  the  juridical  sciences  were  enjoying  in  Germany.  The  reason 
was,  he  said,  that  it  had  not  been  checked  by  codification  as  in 
France.  From  1815  to  1830,  while  French  jurisconsults  were 
absorbed  in  interpretative  labors,  Germany,  animated  by  quite  a 
different  spirit,  was  giving  herself  wholly  to  historical  studies,  as 
notably  in  the  case  of  Niebuhr  and  Savigny.  Laboulaye  severely 
criticized  French  legal  instruction,  which  was  purely  exegetical ; 
he  styled  it  "  illiberal,  incomplete,  behind  the  time",  and  credited 

Code  Napoleon  au  point  de  vue  de  l'idee  democratique"  (2d  ed.,  Paris, 
1866),  pp.  16-22.  On  the  other  hand  Troplong  had  already  praised  the 
Napoleonic  Code  for  its  democratic  spirit  ;  cf.  "De  L'esprit  democratique 
dans  le  Code  civil ", in  "Revue  de  Legislation  etde  Jurisprudence  "'  1 1848), 
Vol.  XXXII,  pp.  128-l(i(»;  (1850),  Vol.  XXXVII,  pp.  321-346;  Vol. 
XXXIII,  pp.  181-206;   Vol.  XXXIX,  pp.  1-27. 

1  Charles  <'<>mtc,  "Traite  de  legislation  on  exposition  des  lois  generates 
Kiiiv.-mi  lesquelles  les  peuples  prosperent,  deperissent  ou  restent  station- 
nan.  3"  (l^aris,  2d  ed.,  1835). 

38 


CHAP.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  2 

the  professors  of  law  with  the  erudition  of  logicians.  He  observed 
that,  in  spite  of  the  efforts  made  in  France  to  improve  legal  instruc- 
tion, it  was  manifestly  inferior  to  that  obtaining  in  Germany. 
There  was  in  France,  he  said,  neither  the  movement  nor  the  life 
to  be  found  on  the  other  side  of  the  Rhine.  He  did  not  demand  a 
radical  change  in  the  study  of  civil  law,  but  a  broadening  of  juridical 
study  ;  he  sought  the  introduction  of  instruction  in  the  history  and 
philosophy  of  law  and  in  comparative  legislation.1 

Courcelle-Seneuil,  who  was  more  an  economist  and  sociologist 
than  a  lawyer,  demanded  that  instruction  be  given  in  France  in 
the  general  principles  of  the  law,  which  were  then  studied  only  from 
the  metaphysical  point  of  view.  He  held  the  study  of  these  prin- 
ciples to  be  indispensable,  because  they  were,  in  a  way,  the  basis 
upon  which  the  whole  law  must  rest.  These  principles  must,  in 
his  opinion,  be  the  results  not  of  metaphysical  speculation  but  of 
contemporaneous  science.  Speaking  of  the  manner  of  interpret- 
ing legislation,  he  forcefully  combated  the  narrow  method  of  the 
jurists  who  looked  solely  at  the  letter  and  had  no  other  care  than 
to  prove  their  point  by  logic,  never  seeking  anything  but  the  inten- 
tion of  the  legislator.  He  charged  them  with  finding  pleasure  in 
inventing  new  solutions  derived  only  from  the  legal  texts  and  not 
from  a  consideration  of  the  requirements  of  life.  Interpretation, 
he  said,  should  be  broader,  less  servile  and  more  subject  to  the 
needs  of  practice.2 

(2)  Reforms  of  Method.  — ■  It  was  with  the  question  of  method, 
we  said,  that  French  jurists  in  their  study  of  the  Code  were  princi- 
pally concerned.  They  wrote  nothing,  however,  on  this  special 
subject.3  Only  the  ever  growing  demands  of  practice  forced  them 
to  change  their  method  by  continually  broadening  it. 

The  German  jurist  Zachariae  was  an  exception.  Almost  from 
the  date  of  the  appearance  of  the  Napoleonic  Code  he  produced  a 
commentary  on  it  in  a  form  that  was  not  exegetical  but  might 

1  Lahoulaye,  "De  l'enseignement  du  droit  en  France  et  des  reformes 
dont  il  a  besoin"  (Paris,  1839),  introd. 

2  Courcelle-Seneuil,  "Preparation  a  l'etude  du  droit.  Etude  des 
principes"  (Paris,  1887),  pref.  and  bk.  Ill,  chap.  x. 

3  In  Italy  several  authors  have  given  attention  to  this  subject :  Tedeschi, 
"MSthode  dans  l'etude  du  droit  civil"  (Turin,  1877);  Brim',  "Essai  sur 
les  institutions  de  droit  civil  italien",  in  "Archivio  giuridico"  (1881); 
Gianturc  >,  "  Les  etudes  de  droit  civil  et  la  question  de  methode  en  Italie", 
in  "Filangieri"  (1891);  Vadala-Papale,  "Le  Code  italien  et  la  science" 
(Naples,  1891);  "Le  droit  civil  dans  l'enseignement  universitaire",  in 
"Archivio  giuridico"  (1882);  Salvia!/,  "Methode  historique  dans  l'etude 
du  droit  civil  italien"  (Palermo,  1884)  ;  Melucci,  "Methode  et  questions 
du  droit  civil"  (Turin,  1884)  ;  Cuturi,  "Sur  les  discussions  recentes  sur  la 
methode  dans  l'etude  du  droit  civil"   (Bologna,  1887);    Asturato,  "La 

39 


§  2]  PART   I      READJUSTMENT    OF   LAW  [Chap.    II 

rather  be  termed  rational  or  scientific.  With  the  aid  of  juridical 
syntheses,  he  set  forth  the  material  not  in  the  order  of  the  Na- 
poleonic Code  but  according  to  a  rational  grouping  of  the  ideas. 
In  France,  Aubry  and  Rau  also  produced  a  commentary  on  the 
French  Code  after  Zachariae's  method.1  The  superiority  of  the 
method  made  the  celebrity  of  the  work  of  Aubry  and  Rau,  which, 
despite  its  age,  is  still  regarded  to-day  as  the  best  doctrinal  exposi- 
tion of  the  French  Code.  It  is  a  curious  thing  that  this  method, 
in  spite  of  its  superiority,  was  not  followed  by  jurists  (with  one 
exception  to  which  we  shall  return  later),  either  in  their  commen- 
taries on  the  Code  or  in  their  instruction.  Masse  and  Verge  even 
translated  Zachariae's  work,  altering  the  method  and  restoring  the 
order  followed  by  the  Napoleonic  Code.2 

Aside  from  the  work  of  Aubry  and  Rau,  all  the  jurists  of  the 
early  1800s  wrote  and  taught  the  Civil  Code  according  to  the  exe- 
getical  method.  Duranton,  who  followed  this  method  in  the  com- 
mentary which  he  wrote  twenty  years  after  the  Code  appeared, 
already  recognized  the  importance  of  the  study  of  the  decisions  of 
the  courts  in  connection  with  that  of  legislation,  and  conceded  it  an 
important  place  in  his  work,  though  making  no  systematic  study 
of  it.3  The  master  of  the  exegetical  method  was  Troplong.  The 
work  had  its  defects,  but  he  was  the  first  to  introduce  into  the 
commentary  of  the  legal  text  an  historical  element,  in  accordance 
with  the  doctrines  of  Guizot  and  Thierry.4 

The  dogmatic  school,  which  came  into  being  after  the  exegetical 
school,  was  distinguished  from  the  latter  in  that  it  followed  the 
order  of  the  Titles  of  the  Code,  but  not  that  of  the  Articles.  Its 
most  illustrious  representative  was  Demolombe.5  The  work  of 
Laurent,  whom  we  have  already  mentioned,  marked  a  new  progress 

science  <lu  droit  et  le  probleme  de  sa  methode",  in  "Rivista  scientifica  del 
diritto",  Vol.  I,  pp.  6  et  seq.,  85  et  seq.,  621  et  seq. 

For  the  question  of  the  reform  of  instruction  in  civil  law  in  Spain  from 
)  be  point  of  view  of  method,  cf.  the  works  of  Posada,  Azcdrate,  and  Sanchez- 
Roman. 

1  Aubry  and  Rau,  "Cours  de  droit  civil  francais  d'apres  la  methode  de 
Zachariae." 

2  Masse"  and  Verge",  "Le  droit  civil  francais;  traduit  de  l'allemand  sur 
la  .")(■  ('<lit  ion ,  annote  et  relahli  suivant  l'ordre  du  Code  Napoleon"  (Paris, 
is:,  I.. 

[For  a  full  account  of  the  legal  science  of  this  period,  see  now  J. 
Bonnecase,  "  La  science  du  droit  prive  en  France  au  XIXe  siecle,  La 
Themis   (1819-31),  el    son    I'ondatetir  Athanasc  .lourdan"    (Paris,   1914). 

Ed.] 
I)iirtnil<m,  "('ours  de  droit  francais  suivant  le  Code  civil"   (Paris, 
L825),  pref. 

1  Laboulaye,  op.  tit.,  introd.,  §  9. 

6  "( "ours  de  ( 'ode  civil." 

40 


CHAP.    II]  DOMINANT    INFLUENCES    AFTER    1850  [§  3 

in  method.     He  attached  the  highest  importance  to  the  study  of 
the  general  principles  which  govern  each  subject. 

But,  whether  using  exegesis,  dogmatics,  or  governing  principles, 
all  these  methods  differed  only  in  their  way  of  arranging  the  mate- 
rial. At  bottom  they  were  identical  in  one  respect :  their  absolute 
respect  for  the  text,  which  served  as  point  of  departure  for  their 
developments,  and  the  logic  of  their  deduction,  which  was  their 
sole  means  of  solving  legal  problems. 

But  in  the  last  quarter  of  the  1800  s,  an  eminent  professor  of  the 
University  of  Paris,  Bufnoir,  openly  attacked  all  these  methods  of 
exposition  and  instruction,  and  effected  a  great  step  forward  in  the 
study  of  law.  The  method  which  he  introduced  in  instruction 
was  scientific,  like  that  of  Zachariae  and  Aubry  and  Rau,  but  im- 
proved by  distinctive  features.  In  his  examination  of  the  subjects 
under  study  he  protested  against  the  excess  of  logic  used  in  the 
solutions  up  to  then  accepted,  and,  contrary  to  what  had  been 
customary,  he  for  the  first  time  constantly  adjusted  the  law  to  the 
requirements  of  real  life  and  always  frankly  recommended  the 
solution  which  most  conformed  to  the  needs  and  tendencies  of 
society.  Consequently  it  has  been  rightly  said  that  few  juris- 
consults of  the  1800  s  exercised  so  great  an  influence  as  he  upon  the 
teaching  of  the  science  of  law  and  upon  the  development  of  legal 
ideas.1  And  his  influence  was  not  merely  in  scientific  regions  ;  for 
it  was  he  who  secured  the  Ministerial  Decree  of  1895  which  re- 
formed and  enlarged  the  curriculum  of  legal  instruction  in  the 
Universities. 

§  3.  Renascence  in  Legal  Science.  —  In  order  to  explain  this 
renascence  of  the  late  1800  s  in  legal  science  in  the  countries 
of  codification,  notably  France  and  Italy,  we  must  cast  a  rapid 
glance  over  the  development  of  the  literature  of  the  law  in  Ger- 
many during  the  1800s,  for  it  was  partly  this  literature  which 
contributed  more  or  less  directly  to  it. 

(1)  German  Legal  Literature  of  the  1800  s.  —  Legal  literature  in 
Germany  was  particularly  abundant  during  the  1800s, because  the 
science  of  law  was  not  arrested  in  its  impulse,  as  in  the  countries 
of  codification.  Though  certain  of  the  regions  of  Germany 
possessed  codes,  their  variety,  and  the  absence  of  codifica- 
tion in  other  regions,  prevented  legal  science  from  being  confined 
to  a  mere  sterile  textual  commentary.  As  early  as  the  middle  of 
the  1800s,  Laboulaye  (as  above  noted)  drew  attention  to  this  fact, 

lGuiUouard,  "Propriete  et  contrat",  according  to  the  lectures  of 
Bufnoir  (Paris,  1900),  introd.,  pp.  xvii-xxiv. 

41 


§  3]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

and  made  this  discovery  the  basis  of  a  demand  for  an  expansion  of 
legal  studies  in  France. 

The  juridical  studies  that  received  a  particularly  important  devel- 
opment in  Germany  were  those  relating  to  history,  private  law,  gen- 
eral jurisprudence  and  methodology,  and  legal  philosophy.  We  know 
that  the  historical  school,  headed  by  Savigny,  owed  its  existence  to 
the  reaction  against  codification  which  set  in  in  Germany  in  the 
early  ISOOs.  This  school  enjoyed  a  wonderful  development,  espe- 
cially in  the  study  of  the  Roman  law.  It  was  the  first  to  apply  the 
method  of  observation  to  law  and  the  social  sciences,  and  it  brought 
into  discredit  in  Germany  the  old  conception  of  a  natural  law. 

Remarkable  from  certain  points  of  view  and  evidently  contrib- 
uting to  the  progress  of  legal  studies,  this  school,  nevertheless, 
had  its  inadequacies  and  defects.  In  the  first  place,  it  disregarded 
the  continuous  evolution  of  law,  and  consequently  failed  to  see  that 
the  real  crux  of  the  problem  was  not  so  much  the  fact  itself  of  codi- 
fication as  its  accomplishment  upon  bases  which  were  an  obstacle  to 
its  continuous  adjustment  to  the  requirements  of  social  life.  As  a 
result,  the  school  was  without  any  legal  ideal ;  it  regarded  such  a 
notion  as  useless  and  even  dangerous  ;  it  neither  weighed  nor  judged 
events :  it  limited  itself  to  ascertaining  them,  to  explaining  their 
cause,  without  occupying  itself  with  their  value  either  from  the 
point  of  view  of  morals  or  of  social  interest.  In  this  category  of 
studies  fall  the  works  of  Jhering.  He  protested  vigorously  in 
Germany  against  the  dogmatism  of  the  law  and  declared  that  to 
try  to  make  out  of  jurisprudence  a  mathematics  of  law,  in  the 
name  of  logic,  was  to  misconceive  its  essential  nature.1  His  work 
on  the  Roman  law,  particularly  his  last  works,  exhibited  a  very 
different  method  from  that  of  the  exegetical  school.  He  imparted 
;i  great  impulse  to  ideas  which  led  in  Germany  to  a  reawakening  of 
legal  science. 

The  literature  upon  subjects  of  private  law  was  very  abundant. 
Two  branches  of  study  existed  in  this  field  :  the  "  Pandcktenreeht  " 
and  the  "  Deutsches  Privatrecht."  In  both,  authors  freed  them- 
selves from  the  legal  texts. 

Genera!  jurisprudence  also  produced  a  very  abundant  literature 
relative  to  each  of  the  two  conceptions  which  grew  up  upon  this 
subject.  Between  INK)  and  L860  this  class  of  study  reached  its 
heighl  ;    since  then  it  has  declined. 

1  "  Esprit  du  droil  romain"  (Fr.  trans,  by  Mevlenaere,  2d  ed.),  Vol.  IV, 
§  69 ;  and  "  l.i  tides complementaires  de  I'esprit  <lu  droit  romain"  (Fr.  trans. 
by  Mevlenaere,  L902),  pp.  71  83  and  309  -882. 

42 


Chap.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  3 

The  study  of  philosophy  of  law  also  prospered.  Natural  law, 
discredited  by  the  historical  school,  was  no  longer  accepted  as  a 
basis,  but  rather  Schelling's  conception,  founded  upon  the  concrete 
reality.  The  object  was  to  explain  the  foundations  of  law  and  to 
study  its  historical  forms.  However,  the  method  of  observation 
was  not  employed  ;  the  point  of  departure  was  always  an  "  a 
priori  "  principle.  For  this  reason  the  principles  of  this  philosophy 
were  stamped  with  a  middle-class,  individualistic  spirit,  borrowed 
in  large  part  from  the  positivism  of  contemporary  legislation. 
These  studies,  as  also  those  of  general  jurisprudence,  fell  into 
decadence  in  the  last  years  of  the  1800  s,  and  their  place  was  taken 
by  studies  of  the  general  theory  of  law  or  legal  dogmatics,  which 
proposed  to  explain  the  general  principles  of  law  as  observable 
by  an  analysis  of  positive  law,  made  strictly  according  to  the  his- 
torical and  positive  method.  This  conception  and  method  of 
study  are  those  of  the  English  analytical  school.1 

(2)  Causes  of  Renascence  in  Countries  of  Codification.  —  We  may 
now  see  how  the  renascence  of  the  study  of  law  came  about  in  the 
countries  of  codification.  It  was  both  scientific  and  practical  by 
reason  of  the  character  of  the  causes  which  produced  it.  The 
causes  of  a  scientific  nature  were  the  same  that  for  years  had  in- 
duced certain  authors  to  undertake  the  reform  of  legal  study, 
namely :  the  progress  of  the  natural  sciences  through  the  method 
of  observation,  the  progress  of  the  social  sciences  and  of  juridical 
study  in  Germany.  The  cause  of  a  practical  nature  was  the  con- 
sciousness, ever  more  intense,  of  the  inadequacy  of  codified  legisla- 
tion to  satisfy  the  new  requirements  of  social  life. 

The  first  of  the  scientific  causes  operated  especially  in  Italy. 
The  progress  of  the  natural  sciences  exercised  a  determining  influ- 
ence upon  the  development  of  the  school  of  criminal  anthropology, 
which  in  turn  reacted  upon  juridical  science  itself.  A  goodly 
number  of  jurists,  imbued  with  the  doctrines  of  the  natural  sciences 
and  of  the  anthropological  school,  proposed  to  apply  the  Dar- 
winian theory  of  evolution  to  the  study  of  civil  law  and  at  the  same 
time  to  infuse  new  life  into  it  by  the  results  of  certain  sciences, 
notably  anthropology  (psychology,  psychiatry,  legal  medicine, 
and  sociology).  While  certain  of  the  works  of  this  school  were  of 
great  importance,  its  narrow  viewpoint,  that  of  finding  in  law  an 

1  Cf.  Korkounov,  "Cours  de  theorie  generate  du  droit"  (Fr.  trans., 
Tchernoff,  Paris,  1903),  introd..  pp.  1-44  [Eng.  trans,  by  /[listings,  Phi- 
losophy of  Law  Series,  Vol.  IV];  Saleilles,  "  Eeole  historique  et  droit 
nature!  d'apres  quelques  ouvrages  recents",  in  "Revue  trimestriellc  de 
droit  civil"  (1902),  §  1,  pp.  80-112. 

43 


§  3]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

evolution  conforming  to  the  laws  of  nature,  prevented  its  producing 
anticipated  results.1 

The  second  of  the  scientific  causes  operated  both  in  Italy  and 
France.  Modern  political  economy  broke  down  the  principles  of 
the  liberal  school ;  it  approached  to  the  reality  of  things  and  threw 
the  light  of  a  new  day  on  many  institutions  of  the  law.  Thus, 
attention  has  long  been  devoted  to  the  close  relation  between 
private  law  and  political  economy ; 2  furthermore,  commercial  law 
has  been  given  a  new  life  by  study  in  relation  to  this  science.  In 
this  field  we  may  mention  the  names  of  Vivante,  Marghieri,  and 
especially  Vidari3  in  Italy,  and  of  Lyon-Caen  and  Renault4  and 
Thaller  5  in  France. 

In  France,  the  scientific  rebirth  took  on  an  official  character 
since  1895,  when  a  ministerial  decree  reformed  the  curriculum  of  the 
law  schools  in  two  particulars.  In  the  first  place,  this  decree  gave 
a  prominent  place  to  instruction  in  the  political  and  economical 
sciences,  to  which  hitherto  but  a  modest  and  altogether  indifferent 
recognition  had  been  given;  it  furthermore  created,  under  the 
faculty  of  law,  the  degree  of  doctor  in  these  subjects,  which  should 
serve  as  an  objective  in  their  study.  This  reform  did  not  come 
about  without  opposition  from  those  who  regarded  the  Code  as 
the  basis  of  legal  instruction  and  thought  that  the  study  of  the 
political  and  economic  sciences  would  be  of  no  utility  to  the  jurist. 

1  Cogliolo,  "Essai  sur  revolution  du  droit  prive.  La  theoriede  revolu- 
tion darwiniste  dans  le  droit  prive";  Vadala-Papale,  "La  nouvelle 
tendance  du  jlroit  civil  en  Italie"  (1883);  Cimbali,  "L'etude  du  droit 
civil  dans  Irs  Etats  modernes"  (1881) ;  "La  nouvelle  phase  du  droit  civil"  ; 
D'Ag  tanno,  "  La  genese  et  revolution  du  droit  civil ;  La  reforme  integrate 
de  la  Legislation  civile."  In  France,  cf.  Manouvrier,  "  L'anthropologie  et 
le  Droit",  in  "Revue  Internationale  de  Sociologie"  (1894),  pp.  241-273, 
351-370. 

'-'  1 1)  France  the  necessity  of  this  alliance  of  the  two  sciences  was  recog- 
nized  as  early  as  1840  by  Laboulaye:  cf.  "Trente  ans  d'enseignemenl  au 
College  de  France"  (unpublished  courses ;  Paris,  1888),  pp.  27  -10;  Rivet, 
"Des  rapports  du  droit  et  de  la  legislation  avec  l'economie  politique" 
(Paris.  L834) ;  .1.  Jourdan,  "Des  rapports  entre  le  droit  el  l'economie 
politique"  (Paris,  L884) ;  .1.  Bechaux,  "Ledroit  el  Us  faits  economiques" 
d'ari-,  1889   :  .  "Des  rapports  de  l'economie  publique  avec  la 

morale  el  ledroit"  (Florence,  1859;  Fr.  trans.,  Leduc,  Paris.  1863).  In 
S<  ptember,  !n^;,  the  "Soci^te"  d'FiConomie  Politique"  of  Paris  discussed 
the  following  question:  "Is  Dolitical  economy  distincl  as  a  science  from 
moral-  and  law?"  In  this  discussion  I. ('on  Say  maintained  that  political 
economy  oughl  not  t<>  be  studied  alone  but  in  relation  to  morals  and  law. 
Cf.  "Journal  des  ficonomistes"  (September,  1886),  p.  421. 

/.'.    Vidari,  "Cours  de  Droit  commercial"  (Milan,  1893,  9  vols.). 

1  Lyon-Caen  and   Renault,    "Traite  de  Droit  commercial"    (4th  ed., 

Paris,   1907). 

Thaller,  "Traite  elemeidaire  de  Droit  commercial"  (4th  ed.,  1010); 
("  Traitfi  general  th^orique  el  pratique  de  Droit  commercial",  Paris,  1910; 
unfinished  as  yet.  —  Tbansl.). 

44 


CHAP.    II]  DOMINANT    INFLUENCES    AFTER    1850  [§  5 

In  the  second  place,  this  decree  no  longer  distributed  the  topics  of 
law,  during  the  three  years  of  study  required  for  the  first  law 
degree  ("  licencie  "),  by  following  the  order  of  the  Code,  as  had 
previously  been  done.  It  substituted  an  order  of  topics  based 
upon  juridical  synthesis.1 

The  renascence  in  legal  instruction  is  now  fully  accomplished. 
Its  present  progress  and  tendencies,  under  the  leadership  of 
Saleilles,  and  developed  by  Geny,  Lambert,  and  many  other  dis- 
tinguished names,  are  not  within  the  present  purpose  to  describe.2 

§  4.  Modern  Trends  of  Change  in  the  Law.  —  It  remains  now  to 
review,  along  broad  lines,  the  principal  social  transformations  and 
the  degree  in  which  they  have  modified  and  are  tending  to  modify 
juridical  institutions  or  the  bases  and  governing  ideas  serving  to 
support  them. 

The  growth  of  democracy,  the  rise  of  the  great  industries,  the 
increase  of  population  in  great  centers,  the  expansion  of  man's 
activity,  the  progress  of  civilization  and  moral  ideas,  —  such  are 
these  transformations,  in  general  features.  They  in  turn  have 
produced  others  no  less  important :  the  multiplicity  of  relation- 
ships of  all  sorts  between  individuals,  economic  rivalry  between 
nations  and  within  each  nation,  solidarity  of  interests  of  wage 
earners,  the  struggle  between  classes,  the  growing  expansion  of  the 
functions  of  the  State,  the  development  of  the  idea  of  association 
in  all  lines  of  activity,  and  the  spread  of  social  and  moral  doctrines 
which  have  led  to  a  widening  of  the  conception  of  justice. 

To  make  clear  the  influence  exercised  by  these  various  orders  of 
phenomena  upon  juridical  relationships,  we  shall  divide  them 
under  three  heads,  political,  economic,  and  doctrinal. 

§  5.  Juridical  Effects  of  Political  Changes.  —  Political  changes 
have  influenced  both  the  external  and  internal  policies  of  nations. 

The  bases  of  international  law  at  the  time  of  the  French  Civil 
Code  were  the  sovereignty  and  absolute  independence  of  States 
towards  each  other.  This  was  historically  due  to  the  isolation  in 
which  States  lived.  It  permitted  publicists,  pervaded  by  the 
spirit  of  natural  law,  to  give  free  rein  to  these  theories.  The  ideas 
of  independence  and  sovereignty  were  exaggerated  to  such  a  point 
that  it  was  claimed  that  the  application  of  a  foreign  law  could  be 
admitted  within  a  State  only  by  comity,  without  thought  of  obliga- 
tor current  opinion,  rf.  "Revue  Internationale  de  l'enseignement" 
(April  L5,  1904),  pp.  299-302. 

-  [A  full  account  is  given  in  "Modern  French  Legal  Philosophy",  being 
Vol.  VII  of  the  Modern  Legal  Philosophy  Series  (Boston,  191G).  —  Ed.] 

45 


§  5]  PART   I      READJUSTMENT    OF   LAW  [Chap.    II 

tion  thereunder.  International  policy  was  occupied  solely  with 
the  maintenance  of  a  European  balance.  It  was  indifferent  to  all 
that  touched  the  material  interests  (which  were,  in  fact,  new)  or  the 
moral  interests  of  a  nation's  subjects. 

Increase  of  population,  the  progress  of  large-scale  industry,  of 
commerce  and  civilization,  entirely  changed  international  politics 
during  the  course  of  the  1800  s,  and  consequently  the  principles 
underlying  the  relations  between  States. 

To-day  the  material  and  moral  interests  of  States  have  stepped 
beyond  the  boundaries  of  their  own  territory  and  are  everywhere 
linked  together.  There  are  countries  which  have  material  and 
moral  interests  of  no  inconsiderable  nature  within  the  territory 
of  other  nations.  This  is  the  case  of  certain  European  powers  in 
Asia,  Africa,  and  Oceania ;  and  for  the  United  States  in  the  coun- 
tries lying  within  the  Gulf  of  Mexico  or  bordering  it.  The  increas- 
ing development  of  the  interests  of  governments  outside  their  own 
territory  has  produced  in  contemporaneous  international  politics 
two  results  in  appearance  contradictory.  In  the  first  place,  there 
is  the  rise  and  growth  of  imperialism  in  all  its  phases ;  secondly,  the 
regulation  of  certain  interests  by  means  of  international  conven- 
tions. 

These  conventions  are  of  two  sorts.  Some  propose  to  adopt 
uniform  rules  for  the  solution  of  conflicts  of  law.  To  this  end 
conferences  met  in  different  cities  of  Europe  in  1893,  1894,  and 
1900  ;  they  led  to  the  signing  of  the  Hague  Conventions  of  Novem- 
ber 14,  1896,  upon  several  matters  of  civil  procedure,  and  of  June 
12,  1902,  upon  marriage,  divorce,  separation,  and  the  guardianship 
of  minors.  A  successful  effort  in  this  direction  was  also  made  in 
Latin-America.  The  conference  which  met  in  Montevideo  from 
August  25,  1888,  to  February  18,  1889,  elaborated  a  draft  of  a  code 
of  uniform  rules  of  private  international  law. 

In  other  directions,  the  union  of  certain  economic  or  social  in- 
terests has  been  effected  through  conventions  known  as  Interna- 
tional Unions.  This  has  been  the  case  with  the  postal  and  tele- 
graphic  service,  transportation,  patents,  trade-marks,  and  copy- 
rights, hygiene  and  sanitary  regulation.  The  number  of  such 
conventions  tends  to  grow  continually  and  to  encompass  every 
sort  of  subject,  especially  such  as  relate  to  social  economy. 

The  consequences  of  such  policies  have  been  felt  first  in  inter- 
national law  and  later  in  all  branches  of  law,  especially  private  law. 

(1)  Upon  Pvblic  International  Law.  —  In  public  international 
law  they  changed  the  basis  of  the  relations  between  States.     In 

46 


CHAP.    II]  DOMINANT   INFLUENCES    AFTER    1850  [§  5 

fact,  the  imperialistic  policy  no  longer  admitted  of  absolute  inde- 
pendence or  even  an  equal  independence  or  an  equal  sovereignty 
of  all  States.  There  is  to-day  a  whole  category  of  States  whose 
independence  or  sovereignty  has  been  more  or  less  affected  :  neutral, 
partly-sovereign,  vassal  States ;  States  subject  to  protectorates 
more  or  less  extensive,  or  to  hegemony ;  autonomous  provinces, 
provinces  belonging  to  one  State  and  occupied  and  administered 
by  other  States,  autonomous  colonies,  neutral  zones,  zones  of 
influence,  territories  conceded  upon  long  leases  with  sovereign 
powers,  etc. 

Imperialism,  furthermore,  especially  in  England  and  the  United 
States,  tends  to  regard  as  national  and  consequently  subject  to 
their  protection  certain  areas  hitherto  considered  international, 
notably  straits  and  inter-oceanic  canals. 

Again,  international  unions,  which  at  first  limited  their  action 
to  the  establishment  of  uniform  rules,  have  created  international 
bureaus  originally  serving  merely  as  centers  of  information ;  but 
to  which  recent  unions  have  conferred  more  and  more  extensive 
powers.  One  of  the  most  recent,  the  Sugar  Union,  created  by  the 
Convention  of  Brussels  of  March  5,  1902,  has  set  up  over  the  con- 
tracting States  a  veritable  international  authority,  invested  with 
powers  of  its  own  and  limiting  thereby  the  internal  sovereignty  of 
each  State  upon  the  particular  subject  matter.  These  States  have 
therefore  abdicated  their  right  to  legislate  freely  in  this  field.  The 
innovation  is  the  more  interesting  in  that  it  will  certainly  not 
constitute  an  isolated  instance.  On  the  contrary,  this  is  the  path 
we  may  predict  international  unions  to  follow  in  the  future.1 

(2)  Upon  Private  International  Law.  —  The  influence  of  the  new 
polities  and  international  relations  was  also  very  evident  when  it 
came  to  private  international  law  (or  conflict  of  laws).  At  the 
time  of  the  adoption  of  the  French  Civil  Code,  this  branch  of 
science  had  no  broader  purpose  than  the  settlement  of  conflicts 
between  the  law  of  two  or  more  countries.  Later,  by  reason  of 
the  closer  relations  of  States  and  of  the  development  of  the  idea  of 
international  brotherhood,  the  German  school  (Savigny,  among 
others)  assigned  as  the  aim  of  private  international  law  not  the 
preference  of  one  national  law  over  another,  but  the  search  for  a 
rule  of  conciliation  between  the  positive  law  of  the  different  coun- 

1  Cf.  Rcault,  "Les  unions  internationalos.  leurs  a vantages  etleurs  in- 
convt'nients",  in  "Revue  generale  de  droit  international  public"  (1896), 
Vol.  III.  pp.  25  et  seq.;  Politis,  "  L'organisation  de  l'Union  Internationale 
des  sueres",  in  "Revue  de  science  et  de  legislation  financieres  "  (Paris, 
Jan.,  Feb.,  March,  1904). 

47 


§  5]  PART    I      READJUSTMENT   OF   LAW  [Chap.    II 

tries,  of  a  system  of  rational  combination  assuring  each  law  the 
degree  of  influence  and  the  scope  of  application  that  should  prop- 
erly belong  to  it.1  To-day,  when  the  interdependence  of  States 
has  become  evident,  and  when  juridical  relationships,  by  their 
chaos  and  the  effect  of  conventions  of  States,  tend  to  become 
international,  private  international  law  must  aim  not  only  to 
combine  the  two  conflicting  legislations  but  to  discover  for  the 
new  class  of  relationships  new  rules  conformable  to  their  inter- 
national nature.  This  will  be  a  third  aspect  of  this  law.  Its 
progress  will  lie  in  fixing  rules  based  upon  the  observation  of 
the  evolution  of  juridical  relationships  in  general,  and  upon  a 
study  of  international  conventions  and  of  the  findings  of  compara- 
tive law  in  particular. 

International  conventions  create,  in  fact,  in  the  subjects  covered 
by  them,  a  common  and  uniform  rule  for  all  the  participating 
States.  They  are  laws  and  must  be  observed  as  such  in  all  the 
contracting  countries.  By  transferring  to  the  domain  of  inter- 
national law  questions  which  hitherto  belonged  exclusively  to  that 
of  the  legislation  of  each  country,  conventions  have,  in  one  stroke, 
modified  the  nature  of  each  of  the  subjects  so  regulated.  They 
may  no  longer  be  studied  with  regard  simply  to  the  regulation  pro- 
vided by  distinct  national  legislations.  They  have  an  international 
aspect,  and  every  conflict  involving  these  subjects  must  be  deter- 
mined in  agreement  with  the  nature  of  this  kind  of  relationship,  and 
no  longer  merely  according  to  the  rules  of  private  law. 

It  is  our  belief  even  that  contracts  of  private  law,  merely  by  the 
fact  that  they  affect  international  interests  (as,  for  example,  the 
construction  of  an  interoceanic  canal,  of  an  inter-continental  rail- 
road, the  procuring  of  immigration,  or  the  laying  of  submarine 
cables),  pass  beyond  the  narrow  limits  of  private  law,  and  are  to  be 
regulated  in  accordance  with  their  true  character.  Xo  doubt  the 
exegetical  school  of  the  French  Code  does  not  admit  this  view,  but 
it  will  tend  more  and  more  to  prevail.  States  do  indeed  seek  to 
protect  these  undertakings  beyond  their  own  boundaries  and  some 
indeed  enjoy  an  international  protection  incompatible  with  the 
nature  of  a  rule  of  purely  private  law. 

(3)  Upon  Internal  Public  Law.  — The  internal  policies  of  every 
country  have  witnessed  in  our  own  period  the  rise  and  growth  of 
democracy  and  universal  suffrage.  It  is  a  fact  of  capital  im- 
portance, because  the  people,  by  the  simple  fact  that  they  govern 

1  Cf.  Pillet,  "Principes  de  droit  international  prive"  (Paris-Grenoble, 
1903),  especially  pt.  I,  chap,  i,  pp.  1-23. 

48 


CHAP.    II]  DOMINANT   INFLUENCES    AFTER    1850  [§  5 

themselves,  tend  to  democratize  all  institutions  and  to  solve  all 
problems  in  the  manner  most  conformable  to  their  interests. 

Collective  interests,  therefore,  take  precedence  to-day  every- 
where over  private  interests.  An  entire  branch  of  public  law  has 
originated  and  is  steadily  developing  to  satisfy  this  new  desidera- 
tum. This  is  administrative  law.  Political  entities  in  France, 
like  the  department  and  municipality,  were  created  only  in  the 
general  and  collective  interest  to  facilitate  the  functions  of  the 
public  service.  Governmental  bodies  and  public  bodies l  have 
no  other  purpose  than  to  satisfy  special  collective  interests. 

Administrative  law  proposes  then  to  regulate  harmoniously 
with  general  interests  matters  belonging  more  or  less  directly  to 
private  law.  Take,  for  example,  the  right  of  property.  The  limi- 
tations imposed  upon  it  directly  or  indirectly  in  the  form  of  public 
servitudes  have  changed  its  nature  and  restricted  its  absolute 
character  in  the  interests  of  the  general  good.  This  right,  therefore, 
is  becoming  more  and  more  an  institution  of  public,  rather  than  of 
exclusively  private  law.  The  change,  not  generally  enough  recog- 
nized, is  one  of  the  causes  of  what  is  known  as  the  agrarian  crisis. 
But  this  is  not  a  phenomenon  peculiar  alone  to  the  right  of  property. 
It  has  occurred  more  or  less  in  all  juridical  institutions. 

Administrative  law  narrows  in  a  general  way  the  field  of  applica- 
tion of  the  civil  law,  either  by  withdrawing  certain  matters  from 
it  or  by  changing  the  nature  of  others.  In  a  word,  the  greater  part 
of  administrative  law  is  in  reality  merely  the  material  of  civil  law 
viewed  from  the  standpoint  of  general  interest  rather  than  that  of 
private  interest. 

This  is  a  point  which  has  not  up  to  the  present  time  been  em- 
phasized very  clearly,  because  the  idea,  deeply  rooted  in  all  minds, 
has  been  tenaciously  held  to  :  that  public  law  has  a  field  of  action 
quite  apart  from  that  of  private  law.  It  is  admitted  only  that  a 
relationship  exists  between  the  two  sorts  of  law.  Certain  authors 
have  already  endeavored  to  show  that  these  are  closer  than  ordi- 
narily believed.  But  far  from  conferring  the  character  of  public 
law  upon  institutions  of  private  law,  the  jurists  tend,  on  the  con- 
trary, to  give  predominance  to  the  rules  of  private  law  over  ad- 
ministrative law  and  to  infuse  them  into  the  latter.  Thus,  for 
example,  it  is  argued  that  an  intimate  correlation  between  the 
two  branches  is  manifest  in  one  of  the  fields  of  activity  of  the  State, 

1  [When  associations  have  been  thus  "declared  of  public  utility"  by 
the  government  they  are  accorded  the  more  special  powers  of  a  juridical 
person:   Law  July  1,  1901,  Arts.  5  and  10.  —  Tbansl.] 

49 


§  5]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

that  of  governmental  management ;  and  that  activities  of  this  sort, 
though  emanating  from  the  sovereign  authority,  should  constitute 
a  new  form  of  business  association  and  the  rights  of  the  citizens 
with  respect  to  such  acts  should  be  controlled  by  the  Civil  Code.1 

But,  though  this  theory  is  disputed,  it  is  agreed  that  the  variety 
of  public  activities  form  a  progression,  ranging  from  the  exercise 
of  sovereign  authority  to  simple  private  ownership,  —  from  acts 
belonging  to  public  law  properly  speaking  and  governed  by  con- 
stitutional law  to  acts  falling  within  the  domain  of  private  law 
and  subject  to  the  authority  of  the  Civil  Code  or  its  legislative 
supplements,  as  modified  by  circumstances.  It  has  even  been 
claimed  that  administrative  law  has  a  twofold  origin ;  that  it 
draws  its  basic  principles  now  from  constitutional  law  and  now 
from  civil  law,  so  that  it  forms  a  link,  as  it  were,  between  these 
two  branches.2 

In  our  belief  the  greater  part  of  administrative  law  is,  as  we  have 
already  remarked,  merely  a  new  point  of  vision  for  the  relation- 
ships of  civil  law.  It  is  a  new  mode  of  regulating  private  relations, 
governing  them  solely  from  the  point  of  view  of  social  interest. 
As  it  develops,  it  will  tend  to  break  down  more  and  more  the  dis- 
tinction, heretofore  so  clearly  marked,  between  public  and  private 
law,  and  to  cause  legal  institutions  henceforth  to  share  in  the  charac- 
ter of  both. 

Administrative  law  has,  then,  modified  certain  institutions  of 
private  law,  notably  property.  But  as  the  nature  of  administra- 
tive law  was  regarded  as  different  from  that  of  private  law,  the 
changes  in  the  course  of  the  century  have,  through  failure  to  real- 
ize this  unity,  not  been  clearly  perceived. 

It  follows,  that  one  who  studies  legal  institutions  solely  as  gov- 
erned by  the  Civil  Code,  as  is  usual  to-day,  receives  an  incorrect 
conception  of  them.  Their  true  character  must  be  restored  by 
assimilating  public  and  private  law ;  and  finally,  when  a  question 
of  private  law  arises  involving  also  administrative  law,  preference 
should  be  given  to  the  solutions  reached  by  the  latter,  since  it 
gives  weight  to  general  interests,  which  always  tend  to  prevail 
over  private  interests. 

§  6.  Juridical  Effects  of  Economic  Changes.  —  The  great 
economic  development  of  the  1800  s  shook  and  almost  overthrew 

1  Hauriou,  "La  gestion  administrative"  (Paris,  1899),  especially  pp. 
58  and  59. 

1  Jacquelin,  "Une  conception  d'ensemble  du  droit  administratif " 
(Paris,  1899),  p.  27. 

50 


Chap.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  6 

the  entire  political  and  economic  organization  of  the  past.  It 
gave  rise  to  formidable  problems  which  cast  their  shadow  over  the 
whole  field  of  contemporary  politics,  internal  and  external :  prob- 
lems of  the  industrial  rivalry  between  nations  or  within  a  nation, 
of  the  massing  of  the  forces  of  labor,  and  of  class  struggle ;  in  a 
word,  what  is  known  as  the  social  problem  in  its  broadest  sense. 

International  law,  internal  legislation,  politics,  philosophy, 
morals,  literature,  —  all  experience  the  influence  of  these  phenom- 
ena and  consequently  of  the  sciences  referring  to  them.  Thus  the 
political  sciences  have  become  social  sciences,  because,  while 
maintaining  the  same  objective,  they  no  longer  regard  it  from  the 
political  side  as  formerly,  but  from  the  social  point  of  view.  And 
thus  the  social  problem  to-day  exceeds  in  importance  those  questions 
that  remain  purely  political ;  politics  themselves  everywhere  *  are 
assuming  a  social  character.2 

Without  endeavoring  to  trace  the  economic  development  of  the 
1800s3  and  its  expansion  in  every  direction,  we  shall  indicate  the 
most  striking  features  of  this  movement  and  its  influences  upon 
private  law. 

Economic  changes  have  had  a  triple  effect  upon  civil  legislation. 
They  have  in  the  first  place  enlarged  the  field  of  operation  of  pri- 
vate law  by  breaking  through  existing  legislative  forms  and  creat- 
ing a  new  legal  system  reposing  upon  new  principles  ;  secondly,  they 
have  destroyed  the  old  unity  of  the  law  by  originating  in  a  con- 
siderable number  of  subjects  a  body  of  law  quite  special  in  charac- 
ter, concerning  a  great  social  class  :  the  laborers ;  lastly,  they  have 
sown  seed  which,  upon  germinating,  should  evolve  in  a  near  future 
into  changes  yet  more  profound  and  radical. 

Let  us  examine  these  points  in  turn. 

(1)  Expansion  of  the  Civil  Law.  —  We  would  first  emphasize  the 
great  development  of  movable  wealth.  This  has  increased  con- 
siderably through  the  growth  of  credit ;   through  the   increasing 

1  This  is  even  so  in  the  ease  of  those  nations  where  political  questions 
involving  nationality,  liberty,  or  religion  greatly  excite  public  opinion,  as 
in  Austria-Hungary  and  the  Balkans. 

2  Former  political  parties,  such  as  liberals  and  conservatives,  tend  to 
become  archaic.  Liberalism  has  already  accomplished  its  end  and  con- 
servatism can  no  longer  struggle  to  maintain  institutions  which  have 
become  antiquated  by  reason  of  the  social  transformations  which  have 
taken  place.  For  that  reason,  events  have  modified  the  platforms  of  both 
parties.  Neither  indeed  could  hold  to  its  early  program  without  being  an 
anti-social  influence. 

3  Cf.  Levasseur,  "Coup  d'ceil  sur  revolution  des  doctrines  et  des  interets 
economiques  en  France  ",  in  "  Revue  economique  internationale  "  (Brussels, 
1(J04),  §  1. 

51 


§  6]  PART   I     READJUSTMENT   OF   LAW  [Chap.   II 

number  of  stock  companies,  almost  unknown  at  the  time  of  the 
adoption  of  the  Code ;  and  through  the  commercialization  of  land. 
Though  falling  within  commercial  law,  the  rules  governing  these 
matters  belong  in  reality  to  civil  law  and  modify  it  more  profoundly 
than  is  apparent  at  first  sight,  for  they  tend  to  cause  the  disappear- 
ance of  the  clear-cut  distinction  between  movable  and  immovable 
property,  which  was  at  the  basis  of  the  Code,  and  to  merge  them, 
as  it  were,  by  giving  each  the  advantages  of  the  other. 

Attention  must  also  be  drawn  to  what  is  called  rural  and  indus- 
trial legislation,  which  is  regarded  as  lying  outside  the  Code,  though 
in  reality  it  regulates  only  relationships  of  a  civil  character.  It, 
however,  weighs  the  interests  of  agriculture  or  industry  before 
those  of  individuals  as  isolated  persons.  If  these  laws  did  not 
exist,  such  relationships  would  be  governed  by  the  general  rules 
of  the  civil  law.  They  have,  therefore,  extended  the  field  of  opera- 
tion of  civil  law,  though  they  have  broken  through  its  old  structure 
and  become  independent  bodies  of  legislation.  Again,  we  repeat, 
they  are  in  reality  but  the  relationships  of  civil  law,  though  gov- 
erned in  accordance  with  the  general  interests  of  industry  or  agri- 
culture instead  of  those  of  the  individual.  Hence  the  need  of 
studying  these  relationships  in  their  true  light  and  of  solving  the 
problems  to  which  they  give  rise,  not  according  to  the  general  rules 
of  the  Civil  Code,  but  according  to  their  own  nature  and  the  par- 
ticular purpose  intended  by  the  new  legislation. 

(2)  Labor  Legislation.  —  The  thousands  of  workmen,  brought 
together  in  factories  and  bound  by  their  similar  interests,  are  ani- 
mated by  a  single  sentiment.  They  believe  that  by  the  present 
economic  and  legal  organization  they  have  been  despoiled  of  what 
belongs  to  them  or  of  what  should  belong  to  them.  They  have 
thrown  themselves  into  the  attack  against  the  social  conditions 
with  the  same  ardor  with  which  the  Third  Estate  engaged  in  its 
struggle  in  the  1700s  against  the  political  privileges  of  a  nobility. 
Their  demands  have  given  rise  to  a  class  struggle.  Their  com- 
plaints are  voiced  no  longer  individually  but  collectively,  and 
emanate  from  individuals  grouped  into  great  unions;  they  have, 
too,  an  international  character,  for  the  same  demands  are  heard  in 
all  countries  with  more  or  less  intensity.  The  popular  masses, 
everywhere  kept  in  agitation,  feel  all  the  greater  zeal  thereby  and 
create  currents  of  public  opinion  formerly  unknown  and  to-day 
irresistible.  The  political  triumph  of  democracy,  which  has 
everywhere  introduced  universal  suffrage,  was  the  first  great 
oonquesl  in   this  direction.     The   right  to  form   unions  and   the 

52 


CHAP.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  6 

right  to  strike  have  emancipated  the  workers  as  a  social  class. 
They  have  been  enabled,  by  grouping  their  efforts,  to  become  a 
political  party  and  submit  their  demands  and  their  grievances  to 
the  law-making  bodies.  By  uniting  the  interests  of  its  members, 
the  laboring  class  has,  furthermore,  given  rise  to  socialism,  which 
goes  on  spreading  and  penetrating  more  and  more  our  social  fabric. 

The  law-maker  scents  the  battle  of  the  labor  classes,  who,  in 
each  new  legislature,  are  more  largely  represented.  He  grants 
them  partially  at  least  satisfaction  of  their  claims.  On  every  hand 
numerous  labor  laws  have  already  been  voted  and  of  these  the  more 
important  refer  to  the  labor  contract.  This  legislation,  born  of  the 
new  social  conditions,  possesses  characteristics  quite  opposed  to  the 
law  contained  in  the  Civil  Code. 

We  have  seen  how  the  Code  set  out  from  a  twofold  individualism  : 
its  rules  were  inspired  by  private  and  not  social  interests  ;  individ- 
uals were  considered  in  their  relationships  as  though  isolated 
from  one  another.  The  Code  protected  the  interests  of  property- 
owners  and  abandoned  the  subject  of  obligations,  including  therein 
the  labor  contract,  to  the  free  play  of  individual  action.  The 
legislator  to-day  adopts  a  very  different  point  of  view.  He  consid- 
ers the  wage  earner  as  having  an  interest  bound  up  with  that  of  all 
others  exercising  the  same  trade  and  he  regulates  their  relation- 
ships to  their  employer  in  order  to  maintain  stability  between 
capital  and  labor.  It  is  no  longer  a  question  of  private  interest, 
but,  indeed,  of  social  interest.  Consequently  the  legislator  does 
not  leave  the  labor  contract  to  free  individual  initiative,  which 
leads  to  disastrous  results ;  he  regulates  it  in  order  to  protect  the 
life,  health,  and  working  efficiency  of  the  workman  and  to  unite 
his  interests  to  his  employer's.  This  regulation  is  upon  very  dif- 
ferent principles  from  that  of  other  forms  of  contracts.  The 
capacity  of  the  contracting  parties,  the  subject  of  the  contract,  its 
consideration,  the  rights  and  obligations  to  which  it  gives  rise  and 
its  termination  are  regulated  by  special  rules. 

Not  only  the  labor  contract,  but  the  entire  body  of  labor  legisla- 
tion, rest  upon  a  new  principle  which  is  opposed  to  individualism. 
The  new  principle  is  solidarity  of  interests,  binding  the  workmen  to 
each  other  and  to  their  employer.  The  Law  of  December  27,  1 892, 
upon  conciliation  and  arbitration,  expressly  recognized  this.  This 
manner  of  solving  conflicts  was,  moreover,  of  itself  sufficient  to 
prove  the  new  basis.  The  foundation  of  labor  legislation  being  no 
longer  individualism,  the  will  of  the  individual  ceases  to  play  the 
principal  role ;  rules  of  law  are  no  longer  interpretative  or  supple- 

53 


§  g]  PART   I      READJUSTMENT    OF   LAW  [CnAP.    II 

mental  of  the  intention  of  the  parties.  They  are  mandatory.  It 
is  not  permitted,  consequently,  to  derogate  from  them  by  agree- 
ment ;  indeed,  the  legislator  has  even  gone  so  far  as  to  provide  sanc- 
tions in  the  form  of  severe  penalties  in  case  they  are  transgressed. 

So  numerous  are  labor  laws  that  they  have  almost  everywhere 
been  codified,  even  in  England,  where  only  partial  codifications 
exist.  In  France,  in  1901,  the  Minister  of  Commerce  appointed  a 
commission  to  unite  into  one  code  the  various  labor  enactments. 
But  it  should  be  understood  that  these  partial  codifications  are  not 
codifications  in  the  proper  sense  of  the  word,  but  simply  a  methodi- 
cal classification  of  the  laws  upon  the  matter,  and,  in  reality, 
we  cannot,  nor  should  we,  go  farther  along  this  path. 

It  is  generally  believed  that  labor  legislation  is  an  independent 
branch  distinct  from  the  civil  law  and  such  certainly  is  the  opinion 
of  those  who  devote  themselves  especially  to  the  study  of  these 
laws.1  In  reality  it  is  not  so.  Just  as  administrative  law  is  in 
fact,  in  its  greater  part,  but  a  new  phase  of  civil  legislation  taking 
into  consideration  solely  the  general  interests ;  just  as  industrial 
and  agricultural  laws  constitute  a  fresh  evolution  of  that  same  civil 
legislation,  taking  into  consideration  the  interests  of  industry  and 
agriculture  in  preference  to  those  of  isolated  individuals ;  so  also 
labor  legislation  is  merely  civil  law  applied  to  a  single  class  of 
persons,  namely  wage-earners,  the  controlling  principle  of  which, 
in  view  of  the  object  of  the  legislation,  is  the  consolidation  of  the 
interests  of  the  workmen  with  each  other  and  their  employers. 
The  changes  effected  in  civil  law  by  labor  legislation  have  not  a 
general  character,  as  in  the  case  of  administrative  law.  They 
apply  only  to  the  working  class.  The  result  is  that  alongside  the 
civil  law,  formerly  governing  all  private  relationships,  there  now 
exists  a  body  of  legislation  lacking  systematic  order  and  destroying 
in  part  the  unity  of  the  civil  law  by  setting  up  beside  the  Code  — ■ 
whose  "  bourgeois  "  prejudices  become  the  more  marked  thereby 
—  a  special  legislation  for  wage  earners.  This  doubling  up  of 
private  law  is  one  of  the  most  remarkable  phenomena  of  our  time.2 

1  Pic,  "Traite  elementaire  de  legislation  industrielle "  (Paris,  1903, 
2d  ed.),  pref.,  p.  viii. 

1 1  is  not  alone  labor  legislation  which  is  exercising  an  influence  upon 
juridical  relationships.  All  labor  institutions  have  an  indirect,  yet  con- 
siderable, influence  upon  private  law.  For  example,  there  is  the  family, 
the  least  subject,  to  change,  it  would  seem,  among  the  institutions  regu- 
lated by  the  < 'ode.  It  has  been  profoundly  transformed  in  its  juridical 
and  locial  functions  by  labor  institutions.  In  a  prior  work  we  developed 
this  idea  a1  length:  Alvarez,  " De  l'influence  des  phenomSnes  politiques, 
economiques  et  sociaux  sur  l'organization  de  la  lamille  moderne"  (thesis, 
Univ.  of  Paris,  1899),  pp.  56,  102-104,  162-215. 


Chap.  II]  dominant  influences  after  1850  [§  6 

(3)  Other  Future  Effects.  —  The  economic  transformations 
have  had,  as  we  have  said,  as  their  third  and  last  effect  to  plant 
in  civil  legislation  certain  new  seed  which  will  reap  in  a  near  future 
changes  yet  more  profound. 

Labor  legislation  tends,  in  fact,  to  be  made  applicable  not  only 
to  the  industrially  employed,  who  were  at  first  the  ones  to  be 
exclusively  considered  by  the  legislator,  but  also  to  all  workers, 
howsoever  employed,  such  as  commercial  employees,  agricultural 
laborers,  and  even  at  times  to  small  employers.  It  is  easy  to  under- 
stand the  importance  of  this  new  direction  which  legislation  is  tak- 
ing. 

There  is  also  a  tendency  to  regulate  the  labor  contract  uniformly 
in  all  countries,  through  international  conventions,  and  conse- 
quently to  withdraw  it  entirely  from  private  law.  This  aim, 
deemed  Utopian  by  the  liberal  school  of  economists,1  is  actually  in 
process  of  realization,  and  has  been  taken  up  not  only  by  certain 
unions,  but  also  by  international  congresses.  A  conference  was 
called  to  this  end  in  Berlin  in  1890,  but  it  accomplished  no  prac- 
tical results.  Later  was  organized  an  association,  "  The  Inter- 
national Union  for  the  Legal  Protection  of  Workingmen",  the  name 
of  which  sufficiently  indicates  its  purpose.2  Its  aim  has  already 
become  a  reality.  The  Franco-Italian  Convention  of  April  15, 
1904,  upon  the  subject  marks  in  fact  a  new  era  in  international 
relations  and  social  legislation. 

The  labor  contract  tends,  furthermore,  to  become  collective. 
Trade  unions  strive,  and  often  succeed,  in  substituting  for  separate 
contracts  between  employer  and  employee  a  collective  contract 
between  union  and  employer  in  a  given  industrial  undertaking, 
or  even  in  all  undertakings  involving  the  same  industry.3 

1  Paul  Leroy-Beaulieu,  "L'Etat  moderne  et  ses  fonetions"  (Paris,  1890), 
p.  350. 

2  Cf.  Pic,  op.  cit.,  §§  172-183  ;  to  the  bibliography  cited  in  the  preceding 
work  add:  Politis,  "La  Conference  de  Berlin  de  1890",  in  "Revue  In- 
ternationale de  sociologie"  (July-Aug.,  1894);  Rolin-Jaquemyns,  "La 
Conference  de  Berlin  sur  la  legislation  du  travail  et  le  socialisme  dans  le 
droit  international",  in  "Revue  international  de  legislation  comparee", 
Vol.  XXII,  p.  5;  Yves  Guyot,  "La  Conference  de  Berlin  et  la  legislation 
internationale  du  travail",  in  "Revue  politique  et  parlementaire "  (Dec, 
1898)  ;  Millerand,  "Les  traites  de  travail ;  la  reunion  de  Bale",  in  "  Revue 
politique  et  parlementaire"  (October  10,  1903). 

3  In  England  the  Boilermakers'  and  Iron-Shipbuilders'  Union  has 
superposed,  in  the  relationships  between  employer  and  employee,  three 
distinct  collective  contracts  one  upon  another.  Cf.  Raynaud,  "  Le  contrat 
eollectif  de  travail"  (1901);  P.  Boncour,  " Le  f ederalisme  economique" 
(1900);  Jay,  "Une  reforme  nouvelle  d'organisation  du  travail  par  les 
groupements  professionels "  (1901);  Bureau,  "Le  contrat  de  travail,  le 
role  des  syndicats  professionels"  (1901). 

55 


§  6]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

We  should  also  note  the  tendency  of  the  legislator  to  grant  to 
groups  of  laborers  and  groups  of  employers  the  right  to  lay  down 
rules,  obligatory  upon  all  members  of  the  same  trade,  for  certain 
matters  fixed  by  law,  such  as  the  maximum  working  day,  the 
minimum  wage,  conditions  of  apprenticeship,  etc.1 

It  is  needless  to  emphasize  the  decisive  influence  which  the 
realizations  of  these  four  tendencies,  each  day  gaining  ground 
in  the  world  of  accomplished  facts,  will  have  upon  civil  legisla- 
tion. 

Finally,  we  would  point  out  two  other  tendencies  which  also 
become  each  day  more  manifest  and  which  in  the  end  will  effect  a 
complete  transformation  of  juridical  relationships. 

First  is  socialism  (State  and  municipal),  which  aims  to  confer 
upon  the  State  and  municipality,  in  addition  to  their  political 
functions,  certain  others  of  an  economic  order,  and,  consequently, 
to  organize  these  functions.  It  aims  to  transform  into  public 
services  a  whole  series  of  relationships  which  now  fall  within  the 
sphere  reserved  to  free,  individual  initiative,  governed  as  such  by 
the  civil  law. 

The  second  tendency  is  the  socialization  of  land-ownership, 
which  is  no  longer  regarded  (as  under  the  Civil  Code)  the  subject  of 
purely  private  right,  but  as  a  social  duty.  The  agrarian  question 
thus  becomes  daily  more  acute.  This  problem  is  not  occupying  all 
nations  with  equal  intensity,  but  particularly  those  which,  like 
Russia  and  Great  Britain,  are  countries  of  large  landholdings. 
During  the  last  thirty  years  Great  Britain  has  legislated  upon  this 
subject  more  than  any  other  country,  and,  inspiring  it  all,  has  been 
the  interest  of  society  as  a  whole. 

§  7.  Juridical  Effects  of  the  New  Social  Doctrines.  —  Certain 
social  facts  (and  we  call  such  all  outside  the  domain  of  politics  and 
economics)  have  also  reacted  upon  juridical  relationships.  The 
increase  of  population,  the  growth  of  great  cities,  the  expansion  of 
human  activities  have  contributed  to  bring  individuals  into  closer 
union  ;  men  have  emerged  from  their  prior  isolation  to  pursue  in 
common  the  realization  of  identical  interests. 

Association  or  (Unionism)  in  its  various  forms  has  greatly 
developed  during  the  1800s  and  is  the  cornerstone  of  modern  life. 
It  has  multiplied  individual  activities  and  cemented  the  interests 
of  members  of  the  same  group.  In  its  various  forms  it  is  not  only 
national  but  tends  even  to  become  international.     It  exists  in  all 

1  Jay,  "La  protection  legale  des  travailleurs "  (Paris,  1904),  pp.  209 
et  seq. 

56 


Chap.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  7 

classes  of  society  and  in  all  orders  of  occupations:  political,  eco- 
nomic, industrial,  scientific,  literary,  etc. 

It  is  by  associating  themselves  that  individuals  united,  by  com- 
mon interests  (farmers,  merchants,  manufacturers,  consumers, 
tradesmen  of  every  sort),  make  known  their  demands;  and 
laws  are  tending  more  and  more  to  safeguard  the  general  interest 
of  the  group  of  which  the  individual  forms  a  part. 

Associations1  (both  commercial  and  non-commercial)  have  re- 
ceived from  the  law  rights  and  powers  which  the  individual  could 
not  enjoy.  Certain  laws  go  so  far  as  to  confer  upon  associations 
(or  unions)  rights  in  the  nature  of  political  power.  These  powers 
are  exercised  by  the  associations  in  the  interest  of  their  members, 
whose  rights,  instead  of  being  individual,  are  socialized  ;  for  it  is  the 
group  which  exercises  them,  the  individual  enjoying  them  only 
through  membership.  By  this  means  the  second  aspect  of  individ- 
ualism above  pointed  out,  by  which  individuals  though  related 
are  considered  as  though  living  isolated,  is  tending  to  disappear. 
More  and  more  the  legislator  inclines  to  regard  individuals  as 
associates,  and  by  grouping  their  divergent  individual  interests, 
he  creates  among  them  co-ordinating  ties  of  solidarity. 

The  development  of  group  action  and  the  powers  that  the  group 
(or  association)  has  received  from  the  law  have  greatly  influenced 
the  juridical  conception  of  its  nature.  That  conception  is  still  in 
process  of  change.  Everywhere  its  true  nature  and  character  are 
being  disputed,  as  also  the  nature  and  character  of  its  property- 
holding  powers ;  and  new  theories  are  being  put  forth  in  this 
regard  which  are  destined  to  have  a  profound  influence  in  the  field 
of  law.2 

Other  phenomena  have  also  been  at  work  upon  juridical  rela- 
tionships. The  development  of  certain  doctrines  which  have 
arisen  from  the  influence  of  political  and  economic  changes,  has 
had  a  reflex  effect  upon  morals  and  consequently  upon  law.  Like 
the  facts  to  which  they  owe  their  rise,  these  new  doctrines  are  in  a 
transitional  and  critical  state,  and  they  mark  the  passage  from  the 
disappearing  regime  of  individualism  to  a  new  regime,  socialism, 
the  ultimate  nature  of  which  we  as  yet  know  little.  They  combine 
various  principles,  even  contradictory,  borrowed  in  turn  from  in- 
dividualism and  socialism.     We  need  no  other  examples  than  the 

1  [These  two  terms  "soeiete"  and  "association"  cover  all  forms  of 
association  ;  the  former  is  for  profit  and  includes  various  forms  governed 
by  the  Civil  and  Commercial  Codes ;  the  latter  is  not  for  profit,  and  is 
governed  by  its  own  special  laws.  —  Transl.] 

2  Vareilles-Sommwres,  "Les  personnes  morales"  (Paris,  1900). 

57 


§  7]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

doctrines  of  Le  Play,  Taine,  Renan,  Littre,  Courcelle-Seneuil,1  not 
to  mention  lesser  names.  A  few  authors  have  aspired  to  bring 
this  period  of  conflict  and  transformation  to  an  end  ; 2  but,  needless 
to  say,  they  have  not  succeeded.  Among  all  these  uncertainties, 
however,  one  thing  is  clear  :  the  constant  reaction  throughout  the 
1800  s  against  individualism,  the  principles  and  application  of 
which  were  vigorously  attacked  by  the  theocrats  as  well  as  by  the 
most  recent  scientific  socialists.3 

§  8.  Solidarity.  —  The  new  doctrines  which  have  made  their 
influence  most  felt  upon  moral  standards,  and  consequently  upon 
legal  relationships,  are  socialism,  solidarity,  and  democracy. 

We  have  already  said  that  morals  include  two  spheres  of  action  : 
the  juridical,  proper  to  the  legislator,  who  there  regulates  legal 
relationships ;  and  the  private,  remaining  outside  legislative  in- 
fluence. We  have  also  pointed  out  how  the  ethical  basis  of  law, 
accepted  by  the  legislator,  was  that  of  the  philosophy  of  the  1700  s, 
which  laid  as  its  foundation  the  absolute  respect  for  individual 
rights  and  wholly  neglected  the  idea  of  solidarity.  Private  morals 
were  the  doctrines  of  Christianity,  with  fraternity  as  the  basis  of 
the  relationships  between  individuals. 

During  the  1800  s  socialism  and  solidarity  entirely  overturned 
this  state  of  things,  and,  in  legal  relationships,  proposed  to  sub- 
stitute for  the  ethics  of  individualism  the  Christian  morality,  which 
assumed  then  the  name  of  solidarity. 

These  doctrines  inspired  not  only  the  new  economics  and  recent 
legislation  but  also  legal  practice  and  decisions ;  they  have  trans- 
formed those  conceptions  of  juridical  liberty  (and  as  a  consequence 
those  of  civil  liability),  of  moral  justice,  and  of  public  policy,  which 
play  an  important  part  in  the  Code. 

A  first  consequence  of  this  idea  of  solidarity  was  the  rise  of  a 
science  the  object  of  which  was  to  restrain  the  excesses  of  individ- 
ualism in  political  economy.  This  science  was  social  economy, 
whose  humanitarian  aim  was  to  diminish  the  suffering  of  mankind 
and  to  increase  its  well-being,  in  the  measure  that  such  increase 
might  contribute  to  social  peace.  Modern  laws  are  no  longer 
inspired,  as  was  the  Code,  by  tradition,  or  the  rationalistic  principles 

1  For  a  summary  of  these  doctrines  and  ;i  confirmation  of  these  ideas, 
cf.  Henri  Michel,  "  i/id<V  de  I'Etat  "  (Paris,  1896),  bk.  V,  chap.  i.  Upon 
t  he  diversil  y  and  confusion  of  economic  docl rines,  cf.  Pic,  "Traite  elemen- 
fcaire  de  legislation  Lndustrielle "  (2d  ed.,  Paris,  1902),  §§  17-69. 

'••  For  example,  FouilUe&nd  Renouvier,  Upon  their  doctrines  and  a  criti- 
cal appreciation  of  their  ideas,  cf.  Henri  Michel,  op.  cit.,  bk.  V,  chap.  m. 

■  Henri  Michel,  ibid.,  bks.  [-IV  and  conclusion.  §  1. 

58 


CHAP.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  8 

of  the  philosophers,  or  the  individualism  of  the  economists,  for 
whom  the  entire  sum  of  justice  consisted  solely  in  giving  to  each 
what  is  believed  to  belong  to  him,  —  in  other  words,  in  establishing 
the  relations  of  co-existing  individuals.  They  are  now  inspired  by 
a  new  principle  of  justice,  solidarity.  It  dominates  economics  and 
social  morals ;  it  presupposes  coordinated  relationships  opposing 
the  individual. 

(1)  Practical  Applications.  —  Solidarity  manifests  itself  in  the 
new  legislation  in  the  following  ways  : 

(a)  Provisions  are  enacted  with  a  view  to  the  regulation  of  cer- 
tain general  interests  whose  influence  is  felt  more  or  less  directly 
upon  legal  relationships  (administrative  law). 

(b)  Legal  relationships  are  regulated  from  the  point  of  view  of 
general  interests,  and  these  now  prevail  over  the  particular  benefit 
of  individuals. 

(c)  Certain  classes  of  legal  relationships,  especially  those  affect- 
ing the  laboring  class,  are  no  longer  left  to  free  individual  initiative. 
The  legislator  is  moved  solely  by  general  interests  in  the  provisions 
which  he  adopts  in  their  regard. 

(<7)  The  new  legislation  establishes  the  principle  of  assistance 
due  by  certain  individuals  to  others  who  have  need  of  it,  especially 
by  employers  to  their  employees  and  by  the  State  towards  certain 
interests  of  the  workingman. 

(e)  They  tend  to  limit  the  exercise  of  certain  rights  and  to  impose 
certain  liabilities  even  where  no  physical  injury  is  done ;  in  other 
words,  they  endeavor  to  introduce  the  principle  of  the  misuse  of 
rights  and  to  extend  the  principle  of  civil  liability. 

(/)  They  multiply  occasions  for  the  increasing  interference  of 
the  State,  in  order  to  assist  association  in  its  various  manifestations 
and  to  recognize  the  public  usefulness  of  bodies  which  the  principle 
of  association  has  not  yet  brought  into  existence. 

(2)  Theory  of  Liability  and  Culpability.  —  We  have  already 
pointed  out  that  the  idea  of  solidarity  modified  in  legal  practice 
and  decisions  the  conception  of  juridical  liberty  and  consequently 
that  of  civil  liability. 

The  Code  admitted  that  the  individual  had  the  right  to  act  as  he 
pleased,  to  enjoy  (as  he  believed)  a  proper  use  of  his  rights,  as 
limited  precisely  by  the  rights  of  others.  It  was  only  in  case  he 
overstepped  those  limits  that  the  individual  could  be  held  respon- 
sible and  even  then  only  for  the  actual  damage  caused.  Indemnity 
for  mental  and  other  non-corporal  damage  was  not  allowed  or  even 
dreamed  of.     Furthermore,  the  individual's  act  was  considered 

59 


§  8]  PART   I      READJUSTMENT   OF  LAW  [Chap.    II 

psychologically  free.  He  had  therefore  not  only  to  be  held  civilly 
liable  but  also  to  pay  for  all  injurious  acts  which  he  committed. 
This  double  conception  of  individual  liberty  resulted  in  narrowing 
civil  liability  and,  on  the  other  hand,  in  extending  criminal  liability. 

To-day  the  idea  of  solidarity,  and  the  progress  achieved  in  psychol- 
ogy and  psychiatry,  have  completely  revolutionized  the  conception 
of  liberty  from  these  two  points  of  view.  Civil  liability  has  enor- 
mously increased,  and  criminal  liability  has  in  turn  been  limited. 

The  latter  limitation  has  come  about  because  jurists,  with  the 
results  of  these  sciences  (and  also  public  sentiment)  before  them, 
have  been  more  and  more  convinced  that  the  criminal  is  not  mor- 
ally culpable,  and  that  he  has  acted  as  a  result  of  more  or  less  appar- 
ent forces.  The  problem  of  crime  is,  then,  not  the  punishment  of 
the  guilty  for  an  act  for  which  he  was  never  wholly  responsible, 
but  his  redemption  by  appropriate  means.1 

Civil  liability  has  increased  from  three  points  of  view. 

In  the  first  place,  legal  writers  and  judges  tend  more  and  more  to 
refuse  to  recognize  individual  rights  as  absolute.  They  tend  to 
substitute  for  the  old  maxim  of  the  Code,  that  there  can  be  no 
reparation  where  there  has  been  only  the  exercise  of  a  right,  the 
idea  of  the  "misuse  of  rights",  bringing  upon  the  author  of  the 
injury  a  liability  independent  of  his  legal  culpability.  More  and 
more  is  it  coming  to  be  admitted  that  acquired  rights  may  not  be 
turned  aside  from  their  normal  uses,  and  that  whoever,  even  within 
the  limits  established  by  law,  exercises  his  right  with  an  evil  inten- 
tion or  causes  it  to  deviate  from  the  social  or  economic  purpose 
which  justifies  it,  must  lose  its  enjoyment  or  be  condemned  to 
repair  the  injury  caused.  And  if  it  is  a  question  of  a  right  arising 
out  of  contract,  it  may  be  destroyed  by  the  annulment  of  the  con- 
tract or  brought  within  its  normal  limits  by  the  court.2 

Secondly,  the  courts  are  punishing  with  increasing  strictness  the 
liability  arising  out  of  an  injurious  act.  In  the  early  years  of  the 
Code  pecuniary  compensation  for  mental  and  other  non-corporal 
injury  caused  by  a  wrongful  act  was  not  recognized  either  by 
jurists  or  courts.  Yet  both  allow  to-day  that  such  a  case  gives  rise 
to  civil  damages.     The  courts  however,  hesitate  to  establish  the 

1  This  explains  the  fact,  at  first  appearance  strange,  that  the  popular 
conscience,  while  having  a  strong  sense  of  legal  liability,  has,  on  the  other 
band,  ■■>  much  feebler  sense  of  responsibility  loGod.  Cf.  Abbede  Gibergues, 
"Nos  re  ponsabitttes "  (Paris,  L904),  pp.  1-20. 

2  Saleilles,  "De  la  declaration  de  volonle".  Art.  138,  §§  85  et  seq.; 
"Theorie  de  1' obligation  "  (2d  ed.),  p.  343,  §4;  and  p.  370,  §  I;  Porcherot, 
"De  I'abus  du  droit"  (thesis,  Univ.  of  Dijon.  1901);  Charmont,  "L'abus 
du  dn.ii  ",  in  "Revue  trimestrielle  de  droit  civil"  (1902),  no.  1,  pp.  113-125. 

GO 


CHAP.    II]  DOMINANT   INFLUENCES    AFTER    1850  [§  9 

principle  of  pecuniary  reparation  for  this  kind  of  injury  when  it 
results  from  the  non-performance  or  the  violation  of  a  contract. 
But  jurists  already  assert  that  civil  liability  should  be  admitted 
in  this  last  case ;  and  perhaps  the  principle  will  not  be  long  in 
becoming  definitely  accepted.1 

Finally,  both  authors  and  judges  have  admitted  that  there  may 
be  liability  independent  of  any  idea  of  culpability,  as,  for  example, 
in  the  case  of  accidents  to  workmen.  This  innovation  was  justified 
upon  the  legal  theory  of  objective  liability  or  occupational  risk. 
Legislation  later  explicitly  established  this  liability  of  the  em- 
ployer to  his  workmen.  It  rests  in  reality  upon  the  principle  of 
assistance  due  by  the  former  to  the  latter  ;  it  is  merely  the  realiza- 
tion of  the  principle  of  solidarity. 

(3)  Equity,  Moral  Justice  and  Public  Policy. — The  changes 
which  the  notions  of  "equity",  "moral  justice",  and  "public 
policy"  have  undergone  in  practice  and  injudicial  interpretation 
are  also  the  legal  effects  of  the  idea  of  solidarity.  These  terms  as 
employed  by  the  legislators  are  vague,  and  they  will  constantly 
evolve  in  conformity  with  ideas  and  doctrines  of  the  times.  The 
legal  notion  of  Equity  and  moral  justice  was,  at  the  time  of  the 
Code,  very  narrow ;  that  of  public  policy  also  had  a  narrow  reach, 
and  was  merged  with  the  notion  of  public  law.  To-day  this  is  no 
longer  true.  The  basis  of  morals  being  solidarity,  writers  and 
courts  tend,  timidly  though  each  day  more  boldly,  to  consider  as 
contrary  to  equity  and  moral  justice  everything  contrary  to  the 
idea  of  social  solidarity.  The  same  is  true  of  the  notion  of  public 
policy,  which  tends  constantly  to  be  identified  with  the  notion  of 
general  interests. 

The  evolution  through  which  these  two  conceptions  have  passed, 
and  which  is  far  from  being  terminated,  will  enable  authors  and 
courts  to  solve  numerous  problems  smoothly  and  in  harmony  with 
the  requirements  of  life. 

§  9.  Legal  Effects  of  Democracy.  —  If  the  idea  of  solidarity  has 
exercised  a  notable  influence  upon  legal  relationships,  as  shown  by 
legislation,  literature,  and  judicial  decisions,  this  is  also  true  of 
another  ideal,  that  of  democracy.  Its  influence  has  been  especially 
felt  in  family  law. 

We  said  above  that  the  original  Code  made  a  clear-cut  distinc- 
tion between  the  lawful  and  unlawful  family,  and  that  it  built  up 
the  law  governing  the  former  upon  the  basis  of  aristocratic  and 

1  Dorville,  "De  l'interet  moral  dans  les  obligations"  (thesis,  Univ.  of 
Paris,  1901). 

61 


§  9]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

autocratic  solidarity.  The  advent  of  democracy  has  tended  to  a 
complete  overthrow  of  the  distinction  between  the  two  sorts  of 
families  recognized  by  the  Code,  as  well  as  to  the  weakening  of 
the  legal  ties  of,  and  authority  exercised  within,  the  lawful  family. 
In  a  democracy  men  differ  little  from  one  another.  As  Tocqueville 
very  justly  remarked,  each  day  the  understanding  of  what  con- 
stitutes superiority  becomes  feebler  and  dimmer.  In  vain  the  legis- 
lator endeavors  to  place  him  who  obeys  beneath  him  who  com- 
mands ;  custom  each  day  confuses  the  two  and  draws  them  in- 
sensibly to  the  same  level.1 

(1)  Upon  the  Relations  of  Husband  and  Wife.  —  The  legal  rela- 
tions of  husband  and  wife  have  been  transformed  by  the  influence 
of  this  doctrine.  The  so-called  feminist  movement  is  merely  the 
operation  of  this  new  idea.  The  authority  of  the  husband  as  the 
head  of  the  family  and  manager  of  the  community  property  has 
been  tempered  more  and  more  in  the  wife's  interests.  The  legal 
bonds  which  unite  them  by  associating  their  persons  and  property, 
tend  constantly  to  relax.  From  the  point  of  view  of  the  associa- 
tion of  their  persons,  we  find  the  wife's  duty  of  obedience  to  her 
husband  weakening,  and  a  tendency  arising  to  regard  marriage 
as  a  bond  which  may  be  dissolved  more  and  more  easily  by  divorce. 
As  to  the  association  of  their  property,  the  tendency  is  to  enlarge 
the  participation  by  the  wife  in  the  management  of  the  community 
and  even  to  effect  a  more  or  less  complete  separation  of  the  respec- 
tive estates  of  the  two. 

The  growth  in  the  wife's  independence  destroys  not  only  the 
authority  of  the  husband  but  also  the  solidarity  of  the  relationship. 
We  must,  however,  note,  as  an  exception  to  this  impairment,  the 
movement  of  all  modern  legislations  to  give  to  the  surviving  spouse 
consort  greater  and  greater  rights  over  the  deceased's  estate.  In 
spite  of  this  exception,  the  rapid  progress  of  socialistic  ideas,  still 
very  uncertain  in  this  matter,2  makes  it  probable  that  in  the  near 
future  the  legal  relationship  between  husband  and  wife  will  be  re- 
duced almost  to  non-existence.  There  is  no  reason,  however,  to 
fear  for  the  future  of  the  family,  which,  in  reality,  is  not  based  upon 
legal  ties,  as  generally  believed,  but  upon  bonds  of  morality  and  of 
affection.8 

1  Tocqueville,  "De  la  Democratic  on  Amerique",  Vol.  Ill,  pt.  3,  chap. 

VIII. 

•For  llio  different  socialistic  systems  upon  this  point,  cf.  Menger, 
"L'Etal  aocialiste"  (Fr.  trans.,  Paris,  L904),  bk.  [I.ehap.  xn,  pp.  176  L92. 

;  Upon  the  constant  impairment  of  the  legal  ties  hot  ween  husband  and 
wife,  cf.  Alvarez,  "Do  l'inlluenee  des  phenomenes  politiquos,  eeonomiques 

G2 


CHAP.    II]  DOMINANT   INFLUENCES   AFTER    1850  [§  9 

(2)  Upon  the  Legal  Relations  of  Parent  and  Child.  —  The  dem- 
ocratic idea  has  also  exercised  a  two-fold  influence  upon  the  legal 
relationships  between  the  father  and  his  legitimate  children.  On 
the  one  hand,  it  has  weakened  his  authority ;  on  the  other  hand, 
it  has  imposed  upon  him,  as  corollaries  to  his  rights,  duties  involv- 
ing his  liability.  He  may  no  longer,  as  at  the  date  of  the  Code,  ex- 
ercise his  rights  freely  and  without  control.  To-day  it  is  no  longer 
admitted  that  the  father  is  invested  with  a  purely  individualistic 
function,  but  rather,  indeed,  with  a  true  social  obligation,  in  the 
discharge  of  which  the  progress  of  the  entire  nation  is  concerned. 
As  such,  the  obligation  cannot  be  abandoned  to  the  father's  pleas- 
ure ;  he  may  be  deprived  of  his  power  if  he  shows  himself  unworthy 
to  exercise  it.  As  in  the  case  between  husband  and  wife,  socialistic 
ideas  tend  to  cause  a  radical  change  in  the  legal  relations  between 
the  father  and  his  children.1  But  these  transformations  cannot 
have  a  destructive  influence  upon  the  family.  Here,  again,  it  is 
less  a  matter  of  legal  ties  than  of  morals  and  affection,  inherent  in 
human  nature  and  strong  enough  to  insure  forever  the  existence 
of  the  family.2 

(3)  Upon  the  Illegitimate  Child.  —  Lastly,  the  democratic  idea 
has  exercised  an  influence  upon  family  law  by  constantly  improving 
the  condition  of  the  illegitimate  child ;  and  this  without  giving 
heed,  as  did  the  legislator  of  1804,  to  the  disadvantages  which 
might  result  to  the  lawful  family.  The  effort  has  been  to  better 
the  situation  of  the  natural  child  in  two  ways  :  first,  by  enlarging 
the  right  to  investigate  his  paternity,  and  secondly,  by  assimilating 
his  situation  to  that  of  the  legitimate  child.  The  movement,  it 
will  be  seen,  is  a  return  towards  the  principles  of  the  Revolutionary 
legislation,  against  which  the  Code  had  reacted.  It  is  worthy  of 
remark,  that  it  was  in  the  name  of  social  interest  that  the  Code 
refused  to  natural  children  the  same  right  as  to  legitimate  children. 
To-day  it  is  in  the  name  of  the  same  interests  that  they  are  being 
placed  upon  an  equal  footing  before  the  law. 

Democracy  has,  then,  had  two  apparently  contradictory  con- 
sequences upon  the  family.  On  the  one  hand,  it  has  gradually 
loosened  the  legal  ties  uniting  the  members  of  the  lawful  family; 
on  the  other  hand,  it  has  rapidly  improved  and  tightened  those  ties 
bit  ween  members  of  the  natural  family.     There  are  thus  two 

et  sociaux  sur  l'organisation  de  la  famille  moderne",  chaps,  n  and  in, 
pp.  i»()-83. 

1  Menger,  op.  cit.,  bk.  II,  chap,  xni,  pp.  193-200. 

2  Cf.  Alvarez,  op.  cit.,  chaps,  iv,  v,  pp.  84-138. 

G3 


§  9]  PART   I      READJUSTMENT   OF   LAW  [Chap.    II 

families  socially  and  legally  organized,  whereas  at  the  time  of  the 
Code  there  was  but  one.  This  slackening  of  the  juridical  ties 
of  the  lawful  family  and  their  extension  to  the  natural  family  is 
the  prime  point  upon  which  hangs  every  problem  relating  to  the 
family  in  modern  society.1 

1  Cf.  Alvarez,  op.  cit.,  chap,  vi,  pp.  139-161. 


64 


CHAP.    I  III       CHANGES    IN    CONTRACT,    PROPERTY,    ETC. 


Chapter  III 

CHANGES  OF   PRINCIPLE   IN  THE   FIELD   OF   LIBERTY, 
CONTRACT,   LIABILITY,   AND   PROPERTY1 

I.    Subjective  Right  and  Social  Function  ;  the  Old  and 

the  New  Theories. 
II.    The  New  Conception  of  Liberty  ;  Sundry  Applica- 
tions. 

III.  The  New  Conception  of  Liberty  (continued)  :  Arti- 

ficial Personality,  and  Associations. 

IV.  The  New  Conception  of  the  Juridical  Act  :    Con- 

tracts and  Testaments. 
V.    The  New  Conception  of  Liability  for  Injurious  Acts. 
VI.     The  New  Conception  of  Property. 


Subjective  Right  and  Social  Function 

New  Theories 


the  Old  and  the 


§  1.     Scope  of  the  Subject. 

§  2.  Continuity  of  the  Develop- 
ment of  Law ;  Principal 
Stages. 

§  3.  "Declaration  of  the  Rights  of 
Man"  of  1789;  the  Na- 
poleonic Code. 

§  4.  The  Legal  System  established 
by  them  is  Metaphysical 
and  Individualistic. 

§  5.     This    System    is    being    sup- 


§0. 

§7. 


§8. 
§9. 


planted  by  a  Realistic  and 
Social  System  of  Law. 

The  Idea  of  Social  Function. 

Solidarity  or  Social  Interde- 
pendence, and  the  Rule  of 
Law. 

Division  of  Labor  in  Society. 

Essentials  of  the  Individual- 
istic System  of  the"  Declara- 
tion of  the  Rights  of  Man", 
and  the  Napoleonic  Code. 


§  1.  Scope  of  the  Subject.  —  The  object  of  these  inquiries  is  to 
examine  the  general  changes  which  have  taken  place  in  law, 
especially  in  private  law,  in  American  and  European  countries  since 

'[This  Chapter  represents  Leon  Dccuit's  "Les  Transformations 
generates  du  droit  prive  depuis  le  Code  Xapoleon"  (1912.  Paris,  l-Y-lix 
Alcan).  The  original  texl  was  a  literal  publication  of  a  course  of  lectures 
delivered  by  the  author  at  the  haw  School  in  Buenos  Aires  in  August  and 
September,  lull,  on  the  imitation  of  that   University. 

The  author  is  professor  in  the  Faculty  of  Law  of  Bordeaux,  and  one  of 
the  greatest  modern  Trench  thinkers.  A  full  account  of  his  work  is  given 
m  Mr.  Spencer's  Editorial  Preface  to  Vol.  IX  of  the  Modern  I  egal  Philos- 
ophy  Series,  "Modern  French  Legal  Philosophy"  (Boston,  1916).  — Ed.] 

65 


S  1J  PART   I      READJUSTMENT   OF  LAW  [Chap.    Ill 

the  beginning  of  the  1800  s,  and  particularly  since  two  celebrated 
events  which  mark  an  important  stage  and  occupy  a  notable  place 
in  the  history  of  civilized  nations  :  the  "  Declaration  of  the  Rights 
of  Man  "  of  1789,  and  the  Napoleonic  Code. 

Our  inquiry  will  be  pursued  from  a  purely  scientific  point  of 
view,  without  preconceived  opinion,  or  prejudice  arising  out  of  any 
political  or  religious  doctrines,  —  rather,  indeed,  with  a  deep  respect 
for  all  beliefs.  Personally  I  admit  of  no  dogma  in  any  line  of  belief 
whatsoever ;  I  follow  the  guide  of  science,  and  science  only,  based 
upon  an  impartial  observation  of  facts. 

Let  us  understand  at  the  outset  the  meaning  and  scope  of  our 
subject.  My  purpose  is  not  to  indicate  the  changes  which  legisla- 
tion has  actually  effected  in  the  principal  countries  of  Europe  and 
America.  That  would  be  a  task  both  difficult  and  of  no  great 
interest.  Besides,  I  am  of  those  who  think  that  law  is  much  less 
the  work  of  the  legislator  than  the  constant  and  spontaneous 
product  of  events.  That  statutes  and  codes  continue  to  exist  with- 
out amendment  of  their  rigid  texts  is  of  little  consequence.  By  the 
nature  of  things  and  the  force  of  events  and  practical  needs  new 
legal  conceptions  are  constantly  forming.  The  text  of  the  statute 
survives,  but  it  has  come  to  be  without  force  or  life  ;  or,  by  a  learned 
and  subtle  interpretation,  it  is  given  a  meaning  and  application 
which  the  legislator  never  dreamed  when  he  drafted  it. 

Without,  therefore,  taking  up  modern  enactments  in  detail,  I 
shall  examine  the  general  transformations  of  law,  and  particularly 
of  private  law,  since  the  "  Declaration  of  the  Rights  of  Man  "  and 
the  Napoleonic  Code,  in  countries  where  legislation  still  consists  of 
rules  inspired  by  the  principles  established  by  these  two  instru- 
ments. And  it  is  fair  to  say  that,  while  there  are  differences  in 
detail  and  in  the  wording  of  legal  texts,  all  American  and  European 
countries  have  reached  the  same  degree  of  civilization,  —  at  any 
rate  all  countries  of  Latin  origin. 

§  2.  Continuity  of  the  Development  of  Law  ;  Principal  Stages.  — 
But  if  the  law  is  in  a  state  of  perpetual  transformation,  if  new  legal 
conceptions  are  continually  in  process  of  development,  why  limit 
tin'  period  of  observation?  Why  take  the  "Declaration  of  the 
Rights  of  Man  "  of  1789  and  the  Napoleonic  Code  as  points  of 
departure? 

Undoubtedly  there  is  in  reality  an  unbroken  and  perpetual 
transformation  of  ideas.  We  must,  nevertheless,  for  the  sake  of 
facilitating  the  development  of  our  subject,  fix  limits  and  distin- 
guish periods.     Artificial  the  distinction  certainly  is;    but  it  is, 

66 


Chap.   Ill]      CHANGES  IN  CONTRACT,   property,   etc.  [§  3 

nevertheless,  indispensable.  However,  I  do  believe  that  in  the 
general  evolution  of  nations,  there  exist  certain  periods  which  begin 
and  end  with  great  events  and  which  cannot  escape  the  attention 
of  the  observant  student.  In  my  opinion  it  would  be  a  great 
sociological  error  to  ignore  this  fact.  It  is,  therefore,  necessary  to 
mark  off  these  periods  and  to  chart  the  great  currents  of  civiliza- 
tion, which  appear  during  each  of  them. 

§  3.  The  "  Declaration  of  the  Rights  of  Man  "  ;  the  Napoleonic 
Code.  —  It  seems  to  me  impossible  to  doubt  that,  for  nations  of 
American  and  European  culture,  the  Napoleonic  Code  and  the 
"  Declaration  of  the  Rights  of  Man  "  of  1789  mark  the  close  of  a 
long  period  of  legal  evolution,  the  completion  of  a  juridical  temple, 
certainly  not  lacking  in  grandeur  and  strength.  The  statesmen 
of  1789  and  the  drafters  of  the  Napoleonic  Code,  and,  it  must  be 
added,  the  great  majority  of  French  and  foreign  jurists  of  the 
first  half  of  the  1800  s,  with  the  exception  of  Savigny's  school,  be- 
lieved that  law  was  an  exact  system,  commanding  adherence  with 
the  same  rigor  and  unassailable  logic  as  a  system  of  geometry. 
Just  as  modern  geometry  rests  upon  the  propositions  formulated 
by  Euclid,  so  at  all  times  and  in  all  nations  the  law  of  civilized 
communities  could,  they  thought,  be  but  the  normal  and  rational 
development  of  the  indestructible  and  final  principles  that  had 
been  formulated  in  those  two  instruments. 

Hardly  had  the  edifice  been  completed  when  it  became  evident 
that  points  of  weakness  appeared.  The  1800  s  have  been  a  partic- 
ularly fruitful  period  in  all  lines  of  human  activity.  A  very  con- 
siderable movement  took  place  in  social  effort.  But  instead  of 
constituting  what  the  statesmen  of  the  French  Revolution  and  the 
first  generation  of  the  last  century  believed  to  be  the  normal 
development  of  the  principles  formulated  in  1789,  this  movement 
marked  a  serious  reaction  against  them.  During  the  last  hundred 
years  the  work  of  destruction  has  gone  on ;  it  is  still  in  process. 
But  with  the  1900  s  there  appeared  clear  lineaments  of  a  new  legal 
structure.  Yet,  this  in  its  turn  cannot  be  final.  Nothing  final 
exists  in  the  world.  Everything  passes  away,  everything  changes ; 
the  system  of  law  now  in  process  of  growth  will  one  day  give  place 
to  another,  which  the  sociological  jurist  of  the  future  will  have  to 
define. 

The  disappearance  of  the  legal  conceptions  established  by  the 
"  Declaration  of  the  Rights  of  Man  "  and  the  Napoleonic  Code, 
and  the  growth  of  new  conceptions,  are  not  peculiar  to  France. 
It  may  be  that  these  movements  have  advanced  farther  there 

67 


§  3]  PART    I      READJUSTMENT    OF   LAW  [Chap.    Ill 

than  elsewhere  ;  it  may  be  that  the  frame  of  the  new  legal  structure 
is  nearer  completion  there  than  in  other  countries.  I  cannot  say. 
But  the  transformation  is  general.  It  is  apparent  in  all  the  nations 
that  have  reached  a  like  degree  of  civilization,  in  Europe  as  well 
as  America.  It  may  be  nearer  realization  in  one  place  than  an- 
other ;  here  it  is  apparent  in  one  matter,  there  it  makes  itself  known 
in  another.  But  its  character  is  general  and  presents  the  same 
distinctive  marks  in  all  European  and  American  countries.  It 
makes  itself  felt  in  the  whole  field  of  law,  public  as  well  as  private ; 
though  I  intend  to  examine  it  particularly  in  the  domain  of  private 
law. 

§  4.  Their  Legal  System  a  Metaphysical  and  Individualistic  One. 
—  The  general  characteristics  of  this  profound  transformation  of 
legal  doctrine  can,  I  believe,  be  formulated  in  two  broad  proposi- 
tions : 

(1)  The  "Declaration  of  the  Rights  of  Man",  the  Napoleonic 
Code  and  all  modern  codes  which  have  to  a  greater  or  less  extent 
been  inspired  by  these  two  instruments,  repose  upon  a  purely 
individualistic  conception  of  law.  To-day  a  legal  system  is  devel- 
oping that  is  based  upon  an  essentially  social  conception.1  It  is 
of  course  clear  that  the  word  social  is  used  for  want  of  better,  and 
that  it  implies  no  adherence  to  any  socialistic  political  party ;  it 
simply  expresses  the  opposition  between  a  system  of  law  founded 
upon  the  idea  of  a  body  of  subjective  rights  residing  in  the  individ- 
ual and  a  system  based  upon  the  idea  of  a  rule  of  civic  conduct 
obligator}'  upon  the  individual. 

(2)  The  system  of  law  established  by  the  "  Declaration  of  the 
Rights  of  Man  "  and  the  Napoleonic  Code  rests  upon  the  meta- 
physical conception  of  subjective  right.  But  law  to-day  tends  to 
find  its  foundation  in  the  knowledge  of  the  existence  of  social  func- 
tion, incumbent  upon  individuals  and  groups.  The  individ- 
ualistic system  of  law  was  metaphysical ;  the  new  system  which  is 
being  worked  out  is  realistic. 

Let  me  explain.  I  said  that  the  fundamental  notion  underlying 
the  system  of  1789  and  1804,2  and  of  all  the  legislation  inspired  by 
it,  is  that  of  subjective  right :  the  subjective  right  of  the  State,  as 

1  Cf.  Charmont,  "La  socialisation  du  droit",  in  "Revue  de  metaphysique 
et  de  morale"  (1903),  p.  403;  A.  Main-,  "Le  socialisme  juridique ",  in 
"  Revue  Bocialiste"  (1904),  Vol.  XL,  pp.  9  et  seq. ;  Duguit,  "  U>  droit  social, 
le  droit  individuel,  el  La  transformation  de  l'fitat"' (2d  ed.,  1911,  Paris, 
V.  AJcan). 

-  [The  date  of  the  Napoleonic  Code,  now  generally  known  as  the  Code 
Civil.  —  Transl.] 

68 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  4 

the  personification  of  the  community ;  the  subjective  right  of  the 
individual.  This  conception  is  purely  metaphysical,  and  is, 
therefore,  bound  to  be  antagonistic  to  the  tendencies  of  modern 
nations  and  to  the  realism,  or,  frankly,  the  positivism  of  our  times. 
What  is  "  subjective  right  "  ?  The  endless  controversies  that 
arise  over  the  true  nature  of  subjective  right  are  the  best  measure 
of  the  artificiality  and  fragility  of  the  conception.  A  volume  might 
be  filled  merely  with  the  titles  of  all  that  has  been  written  in  Ger- 
many, France,  and  Italy,  and  also  in  the  Argentine  Republic, 
upon  the  nature  of  subjective  right.  In  the  end  all  this  discussion 
comes  to  define  subjective  right  as  the  power  residing  in  a  person's 
will  to  impose  his  purpose  as  such  upon  one  or  more  other  wills,  so 
long  as  he  intends  something  which  is  not  prohibited  by  law.  The 
Germans,  notably  Professor  Jellinek,  have  said  that  subjective 
right  is  a  power  to  exercise  the  will,  or  the  power  to  impose  obedi- 
ence to  one's  will  upon  others.1 

1  For  the  various  definitions  of  subjective  right  and  the  discussions 
which  have  arisen  upon  the  matter,  c/.  Duguit,  "Traite  de  droit  constitu- 
tionnel"  (1911),  Vol.  I,  pp.  1  et  seq.;  A.  Levi,  "La  societe  et  l'ordre  juridi- 
que"  (1911),  pp.  245  et  seq.,  chapter  entitled:  "Le  cote  objectif  et  le  cote 
subjectif  du  droit "  ;  Dewogue,  "  Les  notions  fondamentales  du  droit  prive" 
(1911),  pp.  325  et  seq. ;  Michoud,  in  "La  theorie  de  la  personnalite  morale" 
(1906),  Vol.  I,  rejected  the  conception  of  subjective  right  as  it  has  been 
given  in  the  text.  He  preferred  to  answer  the  unsolvable  problem  of  the 
juridical  personality  enjoyed  by  a  group  of  persons,  by  adopting  with 
slight  modification  Jhering's  celebrated  definition:  "Rights  are  interests 
protected  by  law."  Cf.  "Esprit  du  droit  romain"  (French  ed.,  1878), 
Vol.  IV,  p.  326.  Michoud  wrote:  "For  a  right  to  exist,  there  must  be  a 
direct  and  immediate  protection.  We  define  subjective  right,  therefore, 
as :  the  interest  possessed  by  a  person  or  group  of  persons,  and  legally 
protected  through  the  power  recognized  in  the  will  to  represent  and  to  defend 
that  interest"  (p.  105).  But  in  any  case,  Michoud,  in  the  end,  necessarily 
regards  subjective  right  as  a  power  of  will.  Indeed,  supposing  the  founda- 
tion of  subjective  right  to  be  solely  interest,  the  right  itself  would  only  be 
evidenced  in  reality  when  the  interest  was  declared  externally  by  a  volun- 
tary manifestation  on  the  part  of  the  possessor  of  the  right  or  another 
person.  Here  again  subjective  right  is  in  the  end  nothing  more  than  a 
power  to  will.  Furthermore,  Michoud  clearly  recognizes  that  it  is  the 
person  himself,  possessor  of  the  right,  who  asserts  his  interest  or  who  im- 
poses his  interest.  In  the  passage  cited  he  says  that  it  is  not  necessary 
''that  this  will  belong  in  a  metaphysical  sense  to  the  possessor  of  the  right 
as  his  own,  but  that  it  suffices  that  this  will  may  be  predicated  of  him  by 
society  or  in  practice."  And  on  page  132  he  writes  :  "  When  a  medium  of 
expression  exists,  it  is  the  juridical  entity  itself  speaking ;  its  voice  is  not 
something  detached  from  the  legal  entity ;  it  is  a  part  of  it.  Juridical 
organization,  one  result  of  which  is  the  medium  of  expression,  is  of  the 
essence  of  legal  personality."  There  is  not  doubt,  therefore,  in  Michoud's 
mind  that  it  is  the  will  itself  of  the  juridical  entity  which  puts  the  interest 
in  action ;  and  a  right  is,  then,  simply  an  interest  set  in  action  by  the  will 
of  the  possessor  of  that  interest ;  in  other  words  it  is  the  power  to  will  of 
the  possessor.  It  will  be  seen  later  (Appendix  I)  that  Michoud  denies 
emphatically  that  he  is  a  metaphysician.  Can  he  maintain  his  denial 
when,  in  the  passages  cited,  he  declares  that  it  is  not  necessary  "that  this 
will  belong  in  a  metaphysical  sense  to  the  possessor  of  the  right  as  his  own," 

69 


§  4]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

So,  in  the  case  of  my  generally  admitted  rights,  those  that  are 
most  familiar,  it  will  be  easily  seen  that  in  practice  they  are  in  fact 
the  expressions  of  my  power  to  impose  my  will,  even  forcibly,  upon 
others.  Liberty,  for  instance,  is  a  right.  It  is  my  power  to  enjoin 
upon  others  respect  for  my  will  to  develop  without  restraint  my 
physical,  intellectual,  and  moral  forces.  I  have  the  right  of  prop- 
erty :  it  is  my  power  to  enjoin  upon  others  respect  for  my  will  to 
employ  as  I  choose  the  thing  that  I  possess  as  owner.  I  have  a 
right  "  in  personam  "  :  it  is  my  power  to  force  upon  a  person  my 
desire  that  he  perform  an  act. 

The  idea  of  subjective  right  then,  —  and  this  must  not  be  lost 
sight  of  —  always  implies  two  wills  face  to  face  with  one  another  : 
one  will  which  can  enjoin  the  other ;  one  will  superior  to  the  other. 
This  implies  a  hierarchy  of  wills,  in  a  sense  a  measuring  of  inten- 
tions ;  it  imports  a  postulate  about  the  nature  and  the  force  of  the 
element  of  will.  Now  that  is  an  assertion  in  the  highest  degree 
metaphysical.  We  may,  indeed,  observe  the  external  manifesta- 
tions of  the  human  will.  But  what  is  the  nature  of  the  human 
will  ?  What  is  its  force  ?  Can  a  will  of  itself  be  superior  to  another 
will?  These  are  not  questions  that  can  be  solved  by  positive 
science. 

For  the  same  reason  the  conception  of  subjective  right  falls 
entirely  to  the  ground.  It  can  be  truthfully  said  that  such  a 
metaphysical  conception  cannot  be  maintained  in  an  age  of  realism 
and  positivism  such  as  our  own.  The  great  philosopher  Auguste 
Comte  declared  this  truth  more  than  a  half  century  ago,  when  he  so 
forcefully  said :  "  The  word  right  must  be  shelved  from  an  exact 
vocabulary  of  political  thought,  just  as  the  word  cause  from  an 
exact  vocabulary  of  philosophy.  Of  these  two  theologico-meta- 
physical  conceptions,  one,  that  of  right,  is  immoral  and  anarchical, 
while  the  other,  that  of  cause,  is  irrational  and  sophistical.  A  true 
right  cannot  exist  except  in  so  far  as  constituted  authority  emanates 
from  supernatural  will.  To  contend  against  this  theocratic 
authority,  the  philosophy  of  the  last  five  centuries  introduced  the 
so-called  rights  of  man,  which  supplied  simply  a  negative  need. 
Whea  the  attempt  was  made  to  give  them  a  truly  affirmative  role, 
they  soon  manifested  their  anti-social  nature  by  their  constant 
tendency  to  set  up  the  individual.  In  any  positive  state  of  cxist- 
ence  which  does  not  admit  of  the  divine  origin  of  authority,  the 

and  that  "Juridical  organization,  ono  result  of  which  is  the  medium  of 
expression,  is  of  tlio  essence  of  the  Legal  personality?"  Are  not  these 
statements  in  the  highest  degree  metaphysical? 

70 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§  4 

conception  of  right  disappears  forever.  Each  one  has  duties 
toward  the  individual  and  towards  all,  but  no  one  possesses  a  right 
in  the  strict  sense.  In  other  words,  no  one  possesses  any  right 
save  that  of  always  doing  his  duty."  1 

Yet  it  is  upon  this  artificial  and  obsolete  conception  of  subjective 
right  that  the  "  Declaration  of  the  Rights  of  Man  "  of  1789,  the 
Napoleonic  Code,  and  the  greater  part  of  modern  legislation  have 
founded  their  systems  of  law!  How  familiar  are  the  words: 
"  Men  are  born  and  remain  free  and  equal  as  to  their  rights. 
These  rights  are  liberty,  property  .  .  ."  2;  "  Property  is  the  right 
of  enjoying  an  object  in  the  most  absolute  manner  possible."  3 

Taking  Argentine  legislation  as  an  example,  we  find  that  Chapter 
I  of  the  Constitution  is  entitled :  "  Declarations,  Rights,  and 
Guaranties  ;  "  Article  14  provides  that :  "  All  the  inhabitants  of  the 
nation  shall  enjoy  the  rights  hereinafter  set  forth,  upon  conforming 
to  the  law  regulating  their  exercise ;  "  Article  2506  of  the  Civil 
Code  '  defines  ownership  as  :  "  the  right  over  a  thing  by  virtue  of 
which  it  is  absolutely  subjected  to  the  will  and  the  acts  of  a  person." 

To  this  metaphysical  notion  of  subjective  right  was  joined  a 
purely  individualistic  conception  of  society  and  of  objective  law, 
that  is  to  say,  of  law  prescribed  as  a  rule  of  conduct  upon  individ- 
uals and  upon  the  community  as  an  entity,  that  is,  upon  the 
State  as  a  person. 

Individualism  has  had  a  long  history  ;  it  has  been  the  product  of 
a  very  long  evolution.  It  took  its  origin  in  the  Stoic  philosophy 
and  found  its  juridical  expression  in  the  classical  period  of  Roman 
law.  By  the  1500s  and  the  1700s  it  reached  a  complete  and  final 
form,  which  may  be  summarized  in  this  way:  Man  in  nature  is 
free,  independent,  isolated,  the  possessor  of  inherent  rights  that  he 
may  not  alienate  or  lose.  These  rights  are  known  as  natural 
rights  and  are  inseparably  attached  to  him  as  man.  Society  arose 
by  the  voluntary  and  intentional  coming  together  of  individuals 

1  Auguste  Comte,  "Systeme  de  politique  positive"  (ed.  1890),  Vol.  I,  p. 
361. 

-  "Declaration  of  the  Rights  of  Man"  of  1789,  Arts.  1  and  2. 

3  Napoleonic  Code,  Art.  544. 

1  The  Argentine  <  'ivil  ( 'ode  was  drafted  during;  the  years  lXliX  to  1X70  by 
the  em  jut  'lit  Argentine  jurisl  Dalmacio  Velez-Sarsfield,  born  in  C6rdoba, 
Argentine  Republic, in  1810.  Velez-Sarsfield  was  a  man  of  greal  talent 
and  of  profound  legal  and  economic  preparation  for  the  work  (he  had 
taught  political  economy  at  the  University  of  Buenos  Aires).  Mis  draft 
was  approved  by  Parliament  and  became  law  Jan.  1,  1871.  Since  thai 
date  it  has  undergone  three  or  four  modifications,  some  of  which  were  fore- 
Been  and  prepared  by  the  franier  himself.  (Note  supplied  by  \h\  Delle- 
piane,  Professor  in  the  Law  School  of  the  University  of  Buenos  Aires.) 

71 


§  4]  PART   I      READJUSTMENT   OF   LAW-  [Chap.    Ill 

for  the  purpose  of  assuring  protection  to  their  individual  and 
natural  rights.  No  doubt,  as  a  result  of  this  association,  limita- 
tions were  placed  upon  the  rights  of  each,  but  only  in  the  measure 
necessary  to  assure  to  all  the  free  exercise  of  their  rights.  Organized 
society,  the  State,  has  but  one  purpose,  to  protect  and  legalize 
the  inherent  rights  of  each  person.  A  rule  of  law,  that  is  to  say, 
objective  law,  rests  upon  the  subjective  right  of  the  individual. 
The  rule  of  law  lays  upon  the  State  the  duty  of  protecting  and 
guaranteeing  the  rights  of  the  individual ;  it  forbids  the  State  to 
enact  laws  or  perform  acts  interfering  with  the  exercise  of  these 
rights.  It  lays  upon  each  individual  the  duty  of  respecting  the 
rights  of  others.  The  limitations  to  each  person's  activity  rest 
upon  and  are  measured  by  the  protection  granted  to  the  rights  of 
all.  We  read  in  Article  4  of  the  "  Declaration  of  the  Rights  of 
Man  "  that :  "  Liberty  consists  in  being  allowed  to  do  all  that  does 
not  injure  another :  thus  the  exercise  of  the  natural  rights  of  each 
person  has  no  other  limits  save  such  as  assure  to  other  members  of 
society  the  enjoyment  of  those  same  rights.  These  limits  may 
only  be  fixed  by  law."  Article  5  declares  that :  "  Law  may  only 
prohibit  acts  that  are  injurious  to  society ;  "  and  Section  3  of 
Title  I  of  the  French  Constitution  of  1791  says  that :  "  The  legisla- 
tive power  may  enact  no  laws  which  impair  or  interfere  with  the 
exercise  of  natural  and  civil  rights.  ..." 

§  5.  This  System  supplanted  by  a  Realistic  and  Social  System  of 
Law.  —  This  purely  individualistic  conception  of  law  was  as 
artificial  as  the  metaphysical  conception  of  subjective  right.  Like 
the  latter,  it  was  a  product  of  history.  There  was  a  time  when  it 
performed  real  service ;  but  it  could  not  endure. 

In  the  first  place  it  was  woven  with  the  idea  of  subjective  right ; 
and  if  this,  as  has  been  shown,  is  a  metaphysical  conception  which 
cannot  be  maintained  in  modern  society,  saturated  as- it  is  with 
realism  and  positivism,  the  individualistic  conception  of  law  must 
also  fall. 

But  the  individualistic  theory,  even  standing  alone,  cannot  be 
sustained.  The  idea  of  man  in  a  state  of  nature,  isolated,  inde- 
pendent, having  as  man  rights  antedating  the  existence  of  society 
and  bringing  those  rights  with  him  into  the  community,  is  abso- 
lutely erroneous.  Man,  isolated  and  independent,  is  a  pure 
fiction;  he  never  existed  in  such  a  state.  Man  is  a  social  being; 
he  can  only  live  in  groups  ;  he  has  always  lived  as  a  member  of  a 
group. 

And  finally,  to  speak  of  the  rights  of  man  when  isolated  in  a  state 

72 


Chap.    HI]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  5 

of  nature,  to  speak  of  the  individual  considered  by  himself  and 
separate  from  his  fellow  beings,  is  to  fall  into  a  contradiction  "  in 
adjecto."  By  any  definition,  every  right  implies  a  relation  between 
two  subjects.  If  man  is  examined  isolated  and  wholly  cut  off  from 
his  fellow  beings,  he  has  no  rights  and  can  have  none.  Robinson 
Crusoe  on  his  island  had  no  rights ;  he  could  have  none  until  he 
entered  into  relationship  with  other  beings.  The  individual, 
therefore,  can  have  rights  only  so  long  as  he  lives  in  society  and 
only  by  reason  of  the  fact  that  he  lives  in  society.  To  speak  of 
rights  prior  to  the  existence  of  society  is  to  speak  of  the  impossible. 
And  as  we  have  already  shown  that  man  as  a  member  of  society  can 
in  reality  have  no  subjective  rights,  the  entire  system  of  law  based 
upon  the  conception  of  subjective  right  and  the  individualistic 
doctrine  crumbles,  destroyed  by  its  own  false  premises. 

Meanwhile,  in  all  American  and  European  countries  that  have 
reached  a  like  state  of  culture  and  civilization,  a  new  system  of  law 
founded  upon  other  premises  is  being  evolved.  It  has  reached  a 
stage  more  or  less  advanced  according  to  the  country.  Slowly, 
under  the  pressure  of  facts,  it  is  replacing  the  old  system,  and  the 
substitution  is  going  on  independently  of  the  legislator,  indeed, 
in  spite  of  his  silence  and,  at  times,  of  his  unfriendly  intervention. 

The  new  system  rests  upon  a  purely  realistic  idea  which  is 
gradually  crowding  out  the  metaphysical  conception  of  subjective 
right :  that  idea  is  social  function. 

The  individual  has  no  rights  ;  neither  has  a  group  of  individuals. 
But  each  member  of  society  has  a  certain  function  to  perform,  a 
certain  task  to  fulfil.  It  is  precisely  this  that  underlies  the  rule  of 
law  which  is  prescribed  upon  everyone,  great  and  small,  the  govern- 
ing and  the  governed.  This  is  also  properly  a  realistic  and  social 
conception,  and  it  is  radically  transforming  all  the  old  doctrines 
of  law.  Before  developing  this  thought,  let  me  give  two  examples 
to  illustrate  in  a  concrete  manner  how  the  transformation  is  being 
accomplished  and  in  what  it  consists.  The  examples  are  liberty 
and  property. 

In  the  individualistic  system,  liberty  is  defined  as  a  right  to  do 
all  that  does  not  injure  another,  and  hence,  "  a  fortiori",  the  right 
to  do  nothing.  The  modern  notion  of  liberty  is  no  longer  this. 
To-day  each  person  is  considered  as  having  a  social  function  to  ful- 
fil and  therefore  as  under  a  social  duty  to  perform  his  function. 
He  is  under  a  duty  to  develop  to  the  greatest  possible  extent  his 
physical,  intellectual,  and  moral  personality  in  order  to  perform 
his  function  most  effectively,  and  no  one  may  interfere  with  this  free 

73 


§  5]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

development.  But  man  may  not  remain  inactive,  he  may  not  be 
an  obstacle  in  the  way  of  the  free  development  of  his  own  person- 
ality ;  he  has  no  right  to  inaction,  to  idleness.  The  government 
may  intervene  to  force  him  to  labor;  it  may  even  regulate  his 
labor,  for  in  so  doing  it  merely  forces  him  to  perform  the  social 
function  which  devolves  upon  him. 

As  to  property,  it  is  no  longer  in  modern  law  regarded  as  an  un- 
assailable and  absolute  right  over  one's  wealth.  The  right  of  prop- 
erty exists  and  must  exist.  It  is  the  indispensable  condition  upon 
which  rests  the  prosperity  and  greatness  of  society ;  collectivism 
would  be  a  return  to  barbarism.  But  property  is  not  a  right ;  it 
is  a  social  function.  The  owner,  that  is  to  say  the  possessor  of 
wealth,  by  the  fact  of  his  possession,  has  a  social  function  to  per- 
form. So  long  as  he  fulfils  his  mission,  his  acts  as  owner  are  pro- 
tected. If  he  does  not  perform  his  function  or  performs  it  ill ;  if, 
for  example,  he  leaves  his  land  uncultivated  or  allows  his  house 
to  fall  into  ruin,  the  intervention  of  the  State  is  justifiable  to  oblige 
him  to  perform  his  social  function  as  a  property  holder.  Such 
intervention  consists  of  procuring  at  the  hands  of  the  owner  the 
employment  of  his  wealth,  according  to  its  nature. 

Such  are  the  fundamental  ideas  which  will  direct  our  line  of 
thought. 

§  6.  The  Idea  of  Social  Function.  —  I  have  shown  that  the 
individualistic  system  of  law  must  necessarily  disappear  among 
modern  nations.  The  idea  of  subjective  right  is  metaphysical  and 
cannot  survive  the  present  period.  The  individualistic  conception 
contradicts  itself.  The  system  of  law  constituted  on  this  dual  basis 
was  due  to  special  circumstances,  —  was  indeed  but  a  transitory 
product  of  history  which  at  a  given  period  answered  a  social  need, 
but  whose  period  of  supremacy  has  now  closed.  I  stated  further 
that  in  all  modern  countries  a  new  system  of  law  is  evolving, 
founded  upon  a  purely  realistic  social  conception :  that  of  social 
function. 

What,  then,  is  this  idea  of  social  function  ?  Simply  that  neither 
one  man  nor  groups  of  men  possess  rights.  When  we  speak  of  the 
rights  of  the  individual  or  of  society,  when  we  say  that  the  rights 
of  the  individual  must  be  reconciled  with  those  of  the  community, 
we  speak  of  something  that  docs  not  exist.  However,  each  individ- 
ual lias  a  certain  function  to  perform  in  society,  a  certain  task  to 
fulfil.  He  cannot  be  permitted  not  to  fulfil  his  function  or  his 
task  because  his  failure  to  do  so  would  derange  or  at  least  injure 
society.     Furthermore,  all  his  acts  contrary  to  the  function  which 

74 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  7 

devolves  upon  him  will  be  restrained  by  society;  but  all  his  acts 
done  to  further  the  mission  which  is  his  by  reason  of  his  position  in 
the  community,  will  be  protected  and  guaranteed  by  society. 

Herein  appears  very  clearly  the  social  basis  for  a  specific  rule  of 
law  or  for  objective  law.  It  is  both  realistic  and  social :  realistic, 
in  that  it  rests  upon  the  fact  of  social  function  observed  and  proved 
at  first  hand  ;  social,  in  that  it  rests  upon  the  essentials  themselves 
of  social  life.  Specific  rules  of  law,  as  they  are  imposed  upon  men, 
are  not  founded  upon  respect  for,  and  protection  of,  individual 
rights  that  do  not  exist,  nor  upon  manifestations  of  individual  will, 
which,  of  itself,  can  produce  no  effect  upon  society.  Rather  do 
they  rest  upon  the  very  foundation  of  the  social  structure,  the 
necessity  of  preserving  a  cohesion  between  the  different  elements 
that  compose  society  through  the  accomplishment  of  the  social 
function  which  devolves  upon  each  individual  and  group  of  individ- 
uals. It  is  truly,  then,  a  social  conception  of  law  which  is  sup- 
planting the  traditional  individualistic  conception. 

§  7.  Solidarity,  or  Social  Interdependence,  and  the  Rule  of  Law. 
—  The  elements  entering  into  social  cohesion  seem  to  me  to  have 
been  very  definitely  determined  by  various  sociologists.1  It  is  not 
necessary  to  dwell  upon  them  at  length.  They  are  found  in  what 
is  called  social  solidarity,  a  word  that  has  by  its  abuse  been  the 
cause  of  much  confusion.  Public  men  have  made  it  their  own  and 
diverted  it  from  its  true  meaning.  I  prefer,  therefore,  to  use  the 
term  social  interdependence. 

Social  solidarity  or  interdependence,  as  I  understand  the  term 
and  believe  it  ought  to  be  accepted  scientifically,  is  not  a  sentiment, 
much  less  a  doctrine  ;  it  is  not  even  a  principle  of  conduct.  It  is  an 
existing  fact,  capable  of  direct  proof:  it  is  the  fact  of  the  social 
structure  itself.  Observation  and  analysis  show  that,  independ- 
ent of  the  degree  of  civilization  of  a  particular  people,  solidarity 
or  social  interdependence  is  composed  of  two  elements,  ever  re- 
curring in  varying  proportions  and  forms,  co-mingled,  yet  each 
preserving  essentially  the  same  character  at  all  times  and  in  all 
races.  These  two  elements  are  :  similarity  of  needs  of  the  persons 
forming  a  single  social  group;  and,  diversity  of  needs  and  talents 
of  the  persons  forming  that  same  group. 

Men  belonging  to  the  same  group  are  linked  to  one  another, 
first,  because  of  their  common  needs,  which  they  can  satisfy  only 
by  a  life  in  common.  This  is  solidarity  or  interdependence  by  rea- 
son of  similarity  of  interests.  But  men  are  also  united  because 
1  Notably  Durkheim. 

75 


§  7]  PART    I       READJUSTMENT    OF   LAW  [Chap.    Ill 

they  have  different  needs  and  at  the  same  time  different  talents, 
and  because,  living  together,  they  are  enabled  thereby  to  render 
mutual  services  and  procure  the  satisfaction  of  their  various  needs. 
This  is  solidarity  or  social  interdependence  by  reason  of  the  division 
of  labor.1 

§  8.  Division  of  Labor  in  Society.  —  Solidarity  by  reason 
of  the  division  of  labor  is  the  fundamental  element  which  brings 
about  social  cohesion  in  our  highly  civilized  modern  com- 
munities. Civilization  itself  has  come  to  be  measured  by  the 
multiplicity  of  individual  needs  and  of  the  means  of  satisfying 
them  in  the  shortest  possible  time.  This  implies  a  very  complete 
division  of  labor  and  also  a  very  far-reaching  division  of  the 
functions  of  individuals,  and  consequently  a  very  great  inequality 
between  men  to-day. 

The  division  of  social  labor  is  the  paramount  fact  of  our  time ; 
it  is  the  pivotal  point,  as  it  were,  upon  which  the  law  of  to-day  is 
revolving.  Each  individual,  each  group  of  individuals,  whether 
the  supreme  dictator  of  a  nation  or  its  humblest  subject,  whether 
an  all-powerful  executive  or  parliament  or  a  modest  association, 
has  a  certain  task  to  perform  in  that  vast  workship  composing  the 
social  body.  This  task  or  function  is  determined  by  the  position 
which  the  individual  or  group  in  fact  occupies  in  a  community. 
The  individual  possesses  no  subjective  rights ;  he  can  possess 
none,  because  a  right  is  an  abstraction  without  reality.  But,  by 
the  mere  fact  that  he  is  a  member  of  a  social  group  he  is  under  an 
obligation,  existing  in  fact,  to  accomplish  a  certain  social  function  ; 
his  acts  performed  with  this  aim  have  a  social  value  and  will  be 
protected  by  organized  society. 

Such  was  Auguste  Comte's  meaning  when  he  wrote  :  "  In  other 
words,  no  one  any  longer  possesses  any  right  save  that  of  always 
doing  his  duty."  Individuals  possess  no  rights  ;  those  who  govern 
possess  no  rights;  no  social  group  whatsoever  possesses  rights. 
Instead  we  find  a  social  function  to  perform  and  protection  afforded 
all  acts  done  in  view  of  that  function;  but  only  these  acts  are 
protected  and  only  in  the  measure  in  which  they  aim  to  satisfy  the 
function. 

^  !).  Essentials  of  the  Individualistic  System.  —  It  is  easy  to 
perceive  how  profound  a  transformation  the  conception  of  social 
function  implies  in  an  individualistic  and  metaphysical  system, 

1  Durkheim,  "La  division  du  travail  social"  (1893,  2d  ed.  1003;  Paris, 
V.  Mean) ;    Duguit,  "L'fitat,  le  droit  objectif  et  la  loi  positive"  (1901), 

pp.  '_':;  >  l  .  i ,f. 

76 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  9 

such  as  constitute  the  "  Declaration  of  the  Rights  of  Man  ",  the 
Napoleonic  Code,  and  the  greater  part  of  modern  legislation.  All 
the  elements  composing  the  individualistic  system  are  in  process 
of  transformation.  The  names  designating  the  different  divisions 
of  the  law  survive,  and  will  survive  for  a  long  time  to  come ;  but 
in  reality  they  connote  something  quite  different. 

What  were  the  primary  elements  composing  the  individualistic 
system  of  law?  Their  transformation  in  a  realistic  and  social 
sense  must  now  be  described. 

Leaving  aside  the  organization  of  the  family  (because  it  is  a 
special  study  which  cannot  be  undertaken  here,  for  many  reasons, 
but  particularly  because  its  evolution  has  been  along  lines  typical 
of  each  people),  the  primary  elements  constituting  the  individualis- 
tic system  of  law  are  four: 

(a)  The  principle  of  individual  liberty.  This  is  formulated  by 
Articles  2  and  4,  of  the  "  Declaration  of  the  Rights  of  Man  "  of 
1789  x  and  in  the  Argentine  Republic  by  Article  14  of  the  Con- 
stitution.1 

Liberty  implies,  as  will  be  shown  presently,  the  autonomy  of  the 
individual  will,  as  established  by  Articles  6  and  1134  of  the  Napo- 
leonic Code  and  by  Articles  19,  30,  and  944  of  the  Argentine  Civil 
Code.  The  autonomy  of  the  individual  will  is  the  right  to  exer- 
cise one's  volition  juridically ;  it  is  the  right  to  create  by  an  act 
of  the  will  and  under  certain  conditions  a  state  of  facts  having  legal 
consequences. 

(6)  The  contract.  In  the  individualistic  system  this  is  the  perfect 
type  of  juridical  act. 

Theoretically,  a  state  of  facts  producing  a  legal  result  can  arise 
in  the  relations  of  two  individuals  only  through  contract,  unless,  as 
an  exception,  it  be  expressly  created  by  law.  This  is  logical.  A 
fresh  state  of  facts  means  an  alteration  in  the  juridical  status  or 
sphere  of  action  of  two  persons,  positive  for  the  actor  and  negative 
for  the  person  acted  upon.  But  the  foundation  and  measure  of  the 
juridical  sphere  of  action  of  each  person  is  the  will  of  the  person 
him  "If.  His  sphere  of  juridical  action  cannot  then,  in  principle, 
b  •  affected  except  by  his  own  will.  Consequently,  a  juridical  act 
which  is  a  relation  between  two  individuals,  subjects  of  right,  can 
arise  only  through  the  concurrence  of  the  wills  of  those  two  subjects. 
We  -hall  here  see  later  what  remains  to-day  of  this  theory,  which, 
like  all  the  theories  of  the  individualistic  system,  is  undergoing  a 
profound  change. 

1  Quoted  supra,  §  4. 
77 


§  9]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

(c)  The  third  essential  element  of  the  individualistic  system  is 
the  principle  of  individual  liability  for  an  injurious  act. 

Every  act  done  by  a  person  without  right  and  occasioning  injury 
to  another  person  entails  an  obligation  upon  the  originator  of  the 
act  to  repair  the  damage.  The  act  must  exceed  the  right  possessed 
by  its  author ;  in  a  word  there  must  be  wrong  on  his  part.  This 
is  the  principle  of  liability  for  wrong  or  subjective  liability,  which 
is  of  such  capital  importance  in  the  individualistic  system.  It  is 
exclusive  of  all  other  grounds  of  liability  in  that  it  did  not  and  could 
not  admit  of  any  other  basis.  It  was  formulated  in  these  words 
in  Article  1382  of  the  Napoleonic  Code :  "  Any  act  by  which  a 
person  causes  damage  to  another  binds  the  person,  by  whose  fault 
the  damage  occurred,  to  repair  such  damage ;  "  this  provision  is 
elaborated  in  the  Articles  that  follow  it.  Article  1109  of  the 
Argentine  Civil  Code  may  be  likened  to  it :  "  Every  person  per- 
forming an  act  which,  by  his  fault  or  negligence,  occasions  damage 
to  another,  is  bound  to  repair  the  damage."  We  shall  here  show 
that  alongside  of  subjective  liability  for  wrong  there  is  coming 
into  existence  an  objective  liability  for  risk  which  is  directly  due  to 
the  social  conception  of  law. 

(d)  The  principle  of  the  inviolability  of  property,  understood  as 
the  absolute  right  to  use,  enjoy  and  dispose  of  a  thing. 

This  principle  is  laid  down  by  Article  17  of  the  "  Declaration  of 
the  Rights  of  Man  "  which  provides  that  :  "  Property  being  a 
sacred  and  inviolable  right,  no  one  can  be  deprived  of  it.  .  .  ." 
The  substance  of  Article  17  of  the  Argentine  Constitution  is 
identical :  "  Property  is  inviolable ;  and  no  inhabitant  of  the 
nation  may  be  deprived  thereof  except  by  a  judgment  in  accord- 
ance with  the  law."  I  have  already  quoted  Article  544  x  of  the 
Napoleonic  Code  which  defines  the  right  of  property ;  its  proto- 
type is  Article  2506  of  the  Argentine  Civil  Code  :  "  Property  is  that 
right  over  a  thing  by  which  it  becomes  subject  to  the  will  and  acts 
of  a  person."  Private  ownership  as  a  right  is  the  fundamental 
element  of  the  entire  individualistic  system  ;  and  it  may  be  justly 
said  that  the  Napoleonic  Code  was  a  Code  of  property  Rights. 
For  it  must  be  substituted  the  Code  of  Work. 

1  Supra,  §  4. 


78 


Chap.    IIIJ       CHANGES   IN   CONTRACT,    PROPERTY,    ETC. 


[§  10 


II.     The  New  Conception  of  Liberty  ;  Sundry  Applications 


§  10.  Transformation  of  the  Con- 
ception of  Liberty. 

§  11.  Principal  Consequences  of 
this  Definition. 


§  12.  Its  Application  under  Modern 
Statutes  relating  to  Work- 
men and  Pensions. 


§  10.  Transformation  of  the  Conception  of  Liberty.  —  The  first 
and  most  general  element  of  the  individualistic  system  is  the  right 
of  liberty.  The  word  has  a  very  comprehensive  sense.  It  em- 
braces at  once  what  we  know  as  political  liberty  and  what  we  call 
civil  liberty.  The  former  is  the  right  recognized  in  every  subject 
of  a  nation  to  participate  in  a  certain  measure  in  the  government 
of  the  country  ;  with  liberty  so  understood  I  am  here  not  concerned. 
I  propose  to  consider  only  civil  liberty,  a  definition  of  which  is 
given  in  Article  4  of  the  "  Declaration  of  the  Rights  of  Man :  " 
"  Liberty  consists  in  being  allowed  to  do  all  that  does  not  injure 
another  ...  ;  "  and  in  Article  14  of  the  Argentine  Constitution. 
Liberty  is  thus  regarded  as  the  subjective  right  of  man  living  in 
society.  It  is  the  right  to  act;  it  is  the  right  to  develop  one's 
physical,  intellectual,  and  moral  forces.  But  it  is  more  than  that. 
It  is  also  the  right  to  will  with  juridical  effect.  It  is  the  right  of 
being  able,  by  an  exercise  of  the  will  and  subject  to  certain 
conditions,  to  create  a  state  of  facts  productive  of  a  legal  result. 
It  is  what  we  shall  call  the  autonomy  of  the  will. 

Liberty  having  been  regarded  as  a  subjective  right  of  the  individ- 
ual and  only  as  a  right,  the  consequences  that  followed  are  clear. 
Man  has  the  right  to  develop  freely  his  physical,  intellectual,  and 
moral  forces.  The  State  or  legislator  can  do  nothing  to  infringe 
this  right.  But  they  may  and  should  enact  laws  regulating  the 
exercise  of  freedom  of  the  person  and  freedom  of  thought,  but  only 
in  the  measure  requisite  to  safeguard  the  liberty  of  all.  This  is  the 
general  principle  which  in  all  countries  inspires  enactments  affect- 
ing individual  liberty,  liberty  of  the  press,  liberty  of  speech,  liberty 
of  association,  liberty  of  instruction,  and  even  religious  liberty. 
According  to  the  subjective  theory,  the  interference  of  the  State 
cannot  exceed  this.  It  can  impose  no  restraint  upon  the  exercise 
of  individual  liberty  in  any  interest  other  than  that  of  society,  for 
example,  in  the  interest  of  the  individual  himself  who  is  obje<  t  of 
the  restraint.  Furthermore,  the  State  can  impose  no  affirmative 
obligation  upon  the  individual  beyond  the  payment  of  taxes  estab- 
lished for  the  needs  of  the  community  such  as  taxes  in  money,  kind, 
or  in  blood.     According  to  the  subjective  doctrine  the  State  cannot 

79 


§   10]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

impose  upon  the  individual  the  obligation  to  work  or  to  acquire 
an  education  or  to  lay  aside  a  provision  for  the  future. 

Now,  it  is  a  well-known  fact  that  numerous  modern  enactments 
are  in  open  conflict  with  these  doctrines.  In  all  civilized  countries 
in  Europe  and  America,  in  varying  degrees,  laws  restrict  the  activity 
of  the  individual  in  his  own  interest ;  or  make  obligatory  an  educa- 
tion and  the  laying  aside  of  a  provision.  These  laws  are  in  abso- 
lute contradiction  with  the  individualistic  and  subjective  concep- 
tion of  liberty.  Defenders  of  the  individualistic  doctrine,  called 
also  the  doctrine  of  liberty,  protest,  and  lament,  claiming  that  these 
laws  are  contrary  to  every  principle.  Vain  protests,  vain  laments  ! 
The  change  is  evolutionary ;  it  moves  with  the  force  of  a  natural 
phenomenon.  It  may,  perhaps,  be  suspended  or  impeded  for  a 
while ;  it  must  eventually  be  accomplished.  It  is  the  natural  and 
necessary  consequence  of  that  general  transformation  which  I  have 
explained,  —  of  the  new  conception  of  liberty,  not  as  a  subjective 
right,  but  as  a  result  of  the  obligation  resting  upon  each  one  to 
develop  his  individuality,  that  is  to  say,  his  physical,  intellectual, 
and  moral  activity  as  fully  as  possible  in  order  to  co-operate  with 
all  his  forces  towards  social  solidarity. 

§  11.  Principal  Consequences  of  this  Definition.  — This  obliga- 
tion is  the  immediate  consequence  of  the  fact  of  solidarity  through 
the  division  of  labor,  which  is  the  chief  factor  in  social  cohesion, 
that  is  to  say,  solidarity  through  the  procurement  of  the  satisfac- 
tion of  man's  multiform  needs  through  his  diverse  activities. 
Each  individual  is  bound,  therefore,  to  play  his  role  in  society,  to 
accomplish  a  certain  task,  and,  for  that  reason,  to  develop  to  the 
greatest  possible  extent  his  forces  and  his  aptitudes  in  all  directions. 
Liberty  is  not  man's  by  right ;  he  is  under  a  social  duty  to  act,  to 
develop  his  individuality  and  to  perforin  his  social  mission.  None 
may  oppose  his  acts  done  with  this  purpose,  provided,  of  course, 
that  his  acts  do  not  impair  a  like  liberty  in  others.  The  State 
may  not  interfere  to  limit  a  man's  activity  when  exercised  with  this 
end  in  view;  it  should  protect  all  his  acts  tending  towards  this 
purpose  and  repress  and  punish  all  such  as  have  a  contrary  tend- 
ency. 

I  p  to  this  point  the  new  system  leads  to  almost  the  same  con- 
sequences as  the  individualistic  system.  But  now  appears  the 
profound  difference.  If  man  is  free  only  to  develop  his  individual- 
ity and  that  only  in  proportion  as  his  acts  tend  towards  this  aim, 
it  follows  that  he  may  do  nothing  to  restrain  or  arrest  that  develop- 
ment ,  and  that  the  State,  the  voice  of  objective  law,  may  and  should 

80 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§11 

interfere  to  forbid  his  so  doing.  Where  the  State  does  so  it  impairs 
no  so-called  right,  but  simply  applies  the  law  of  social  solidarity, 
which  is  the  fundamental  law  of  all  modern  communities. 

The  first  and  obvious  consequence,  then,  is  that  any  law  pro- 
hibiting and  punishing  suicide  would  be  justifiable.  It  is  not, 
of  course,  intended  to  restore  the  ancient  practice  regarding  dead 
bodies  and  to  deny  the  right  of  burial  of  suicides.  By  the  prohibi- 
tion and  punishment  of  suicide,  is  meant  the  punishment  of  the 
attempt  at  suicide  and  the  prosecution  of  the  accomplices. 

French  law  to-day  does  not  punish  suicide.  But,  under  the 
influence  of  Christianity,  early  French  law  did  punish  it.  Customs 
differed,  no  doubt,  as  to  the  application  of  the  punishment ;  but 
the  repression  existed  in  all  parts.  If  fell  not  only  upon  him  who 
survived  the  attempt,  but  also  upon  the  successful  suicide,  through 
the  confiscation  of  his  estate.  This  state  of  the  law  was  entirely 
abolished  by  the  Revolution.  The  principle  of  individual  liberty 
was  then  proclaimed,  and  with  it  the  liberty  to  kill  oneself,  which 
was  loft  free  from  any  repressive  measure.  Modern  legislation  has 
adopted  this  point  of  view,  and  law  nowhere  to-day  yet  punishes 
attempted  suicide.1 

But  some  countries  punish  complicity.  For  example,  in  England 
otic  who  aids  a  suicide  is  held  a  murderer.  Brazil,  Holland,  Spain, 
and  Hungary  imprison  the  accomplices  of  a  suicide.  There  is 
certainly  an  inconsistency  here.  If  suicide  is  lawful,  the  act  of  a 
third  party  participating  therein  cannot  constitute  an  infraction 
of  the  law.  Yet  it  is  true  that  the  punishment  aimed  at  the  ac- 
complice paves  the  way  for  the  repression  of  suicide  itself.  Our 
conscience,  which  is  daily  becoming  definitely  convinced  of  the  fact 
of  social  solidarity,  must  soon  demand  its  repression  by  all  civilized 
legislations.2 

1  The  Criminal  Code  of  Austria  of  1803  appears  to  be  the  only 
European  Code  which  in  the  1800s  punished  suicide.  It  distinguished 
between  the  attempt  voluntarily  suspended  and  the  attempt  w  hich  failed 
of  effect  through  a  cause  exterior  to  the  will  of  the  subject.  In  the  former 
case,  the  party  was  warned  by  the  magistrate;  in  the  latter  case  he  was 
imprisoned,  rigidly  watched,  and  subjected  to  an  appropriate  physical  and 
moral  treatment.  If  the  attempt  succeeded,  the  body  of  the  guilty  party 
hail  to  he  interred  outside  the  cemetery  after  pronouncement  by  the  court. 
None  of  these  provisions  passed  into  the  Austrian  Criminal  ('ode  of  L853 
which  is  now  in  force.  Cf.  Garraud,  "  Traite  de  droit  penal"  (2ded.,  1900), 
Vol.  IV.  pp.  630  et  seq. 

-'  Under  the  French  Criminal  Code,  suicide  i  of  being  a.  breach  of  the 
law.  the  accomplice  cannot  lie  punished.     Thus,  any  one  inciting  th< 
or  preparing  or  facilitating  it,  escapes  all  penalty.     Writer  ■!  au- 

thority admit,  however,  thai  while  participation  in  the  sui  o1  ho 

held  a  crime,  it  is  not  so  with  the  voluntary  killing  o(  another  with  that 
other's  consent  or  upon  that  other's  command  or  entreaty.     "  In  this  last 

81 


§  11]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

Upon  like  principles  the  law  should  punish  duelling.  Many- 
legislations  do  prohibit  and  punish  it,  and  such  a  prohibition  un- 
doubtedly tends  to  become  general.  Man  should  not  be  allowed 
to  expose  himself  needlessly  to  death.  The  duel  is  a  survival  of  a 
barbarous  epoch  when  justice  was  unorganized,  and  of  a  supersti- 
tious belief  in  the  judgment  of  God.1 

The  law  should  prohibit  all  dangerous  games  where  man  jeopard- 
izes his  life  without  advantage  to  society.  The  life  of  the  individ- 
ual is  a  social  asset  and  it  cannot  be  permitted  to  be  endangered 

case  ",  says  Garraud,  "  the  person  killed,  though  he  sought  death,  played  but 
a  purely  passive  role  ;  the  author  of  the  act,  the  principal,  is  he  who  causes 
the  death.  Such  facts,  consequently,  come  within  the  implied  terms  of 
the  definition  of  murder  and  assassination."  Cf.  "  Traite  de  droit  penal" 
(2d  ed.,  1900),  Vol.  IV,  p.  (335;  so  also,  Hauss,  "Legislation  criminelle", 
Vol.  Ill,  p.  210;  the  decision  of  the  French  Court  of  Cassation,  Criminal 
Section,  August  21,  1851,  reported  in  Sirey,  1852,  I,  p.  286. 

1  Most  modern  legislations  punish  duelling  as  a  special  breach  of  the  law, 
defining  it  as  :  a  prearranged  combat  fought  with  deadly  weapons  between 
two  or  more  persons,  in  reparation  of  offended  honor,  preceded  by  a 
challenge,  and  taking  place  before  witnesses.  Cf.  particularly  the  Criminal 
Codes  of  Belgium,  Arts.  423-433  ;  Holland,  Arts.  152-153  ;  Hungary,  Art. 
297;  Germany,  Arts.  201-210;  Italy,  Arts.  237-245.  In  the  early  history 
of  France,  numerous  royal  edicts  from  Henry  II  to  Louis  XVI  punish  :>d 
duelling  by  severe  penalties.  But  neither  the  legislation  of  the  Revolu- 
tion nor  the  present  Criminal  Code  refer  to  or  punish  it.  By  a  decree  of 
July  15,  1794  (27  Messidor,  year  II),  the  Convention  declared  that  no  law 
either  provided  against  or  punished  inciting  to  duel  and  the  matter  was 
referred  to  the  Commission  for  the  revision  of  law,  which  was  to  examine 
into  the  means  of  preventing  duelling.  Cf.  Merlin,  "Repertoire"  (5th 
ed.,  1S27),  under  heading  "Duel",  at  p.  493. 

What  led  the  legislator  of  the  Revolution  and  Empire  to  refrain  from 
repressing  the  duel?  It  is  not  necessary  to  seek  beyond  the  individualistic 
doctrine  which  dominated  the  minds  of  the  period.  The  legislator  could 
not  punish  duelling,  since  duellists  exposed  themselves  voluntarily  to  death 
and  since  the  legislator  had  no  right  to  prevent  the  individual  from  killing 
himself  or  exposing  himself  to  death.  For  a  long  time  the  decisions  of  the 
French  Courts  were  inspired  by  the  same  idea.  It  was  held  that  homicide 
and  wounding  in  a  duel  constituted  neither  a  crime  nor  a  tort.  Cf.  Court 
of  Cassation,  Criminal  Section,  December  4,  1824,  reported  in  Sirey, 
1X25,  1.  p.  6,  and  Augusts,  1828,  Sirey,  1828,  I,  p.  393.  But  on  June  22, 
1837,  all  the  sections  of  the  Court  being  united,  upon  argument  by  the 
Attorney  General  Dupin,  the  Court  of  Cassation  modified  its  opinion  and 
decided:  "that  the  terms  of  Articles  295  and  29!  >  of  the  Criminal  Code 
(defining  and  punishing  homicide)  are  absolute  and  allow  of  no  excep- 
tions .  .  .  ,  that  while  no  act  of  the  legislature  makes  duelling,  as  such,  a 
crime,  or  the  circumstances  preparatory  to  and  accompanying  it,  yet  no 
provision  of  law  places  these  circumstances  among  the  facts  justifying 
killing,  wounding,  or  the  giving  of  blows  .  .  .  ,  that  it  is  an  inviolable 
maxim  of  public  law  that  no  one  shall  be  allowed  to  lake  justice  into  his 
own  hands.  .  .  ."  Cf.  text  of  the  opinion  of  the  Court  and  of  Attor- 
ney General  Dupin  in  Sirey,  1837,  I.  pp.  4(>5  ct  seq.  This  case  finally 
settled  the  direction  of  French  judicial  law.  Duelling  is  now  not  punish- 
able of  itself  as  a  crime  or  as  special  wrong,  but  killing  or  wounding  in  a 
dm!  are  grounds  of  punishment  and  witnesses  of  the  duel  are  liable  as 
accomplices.  This  is  simply  an  application  of  Arts.  295  el  seq.  of  the 
Criminal  Code.  This  system  presents  iii  practice  very  grave  defects. 
There  is  evidently  a  lacuna  in  our  law  which  it  is  most  desirable  to  fill. 

82 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§11 

for  other  than  social  interests.  For  example,  laws  very  justly  are 
tending  to  suppress  the  bull  fights  which  disgrace  Spain.  In  the 
last  few  years  these  games  have  unfortunately  passed  from  Spain 
into  the  South  of  France.  The  French  Parliament  has  under  con- 
sideration a  law  which  shall  prohibit  them  absolutely,  and  it  will 
very  probably  be  voted.  Yet  the  law  excites  protest  because  it  is 
said  to  infringe  liberty.  Such  a  protest  is  without  value  and  does 
not  merit  our  consideration. 

Certain  classes  of  labor  are  dangerous  yet  indispensable.  In 
these  cases  the  legislator  should  interfere  to  prescribe  proper 
measures  to  minimize  the  danger.  It  is  useless,  in  opposing 
such  legislation,  to  rely  upon  the  so-called  right  of  the  individual 
to  do  as  he  pleases.  By  imposing  measures  of  safety  the  legislator 
merely  protects  human  life  as  a  social  asset.  Many  countries  have 
a  very  complete  law  in  this  matter.  France  possesses  a  series  of 
laws  and  decrees,  notably  the  Act  of  June  12,  1893,  upon  the  health 
and  safety  of  workmen  in  industrial  establishments ;  the  Acts  of 
July  8,  1890,  March  25,  1901,  May  9,  1905,  July  23,  1907,  and 
March  12,  1910,  upon  the  safety  of  those  employed  in  mines. 
These  laws  elaborate  their  own  method  of  enforcement  in  an  inter- 
esting manner.  The  miners  themselves  appoint  representatives 
whose  duty  it  is  to  see  that  the  law  is  strictly  applied :  "  Repre- 
sentatives charged  with  caring  for  the  safety  of  miners  are  appointed 
who  shall  visit  the  underground  works  of  the  mines  .  .  .  ,  for  the 
sole  purpose  of  examining  into  the  conditions  of  safety  of  those 
employed  there  ;  and  further,  in  case  of  accident,  the  circumstances 
causing  the  accident.  .  .  .  All  the  representatives  and  substitute 
representatives  to  be  elected  are  balloted  for  simultaneously.  .  .  . 
The  electors  of  a  given  district  are  the  employees  who  work  under 
ground.  .  .  ."  l 

In  the  same  spirit,  the  law  may  and  even  should  limit  the  maxi- 
mum number  of  hours  of  labor  per  day.  It  is  probable  that  in  the 
near  future  all  the  legislatures  of  the  civilized  world  will  have 
passed  similar  laws  in  this  matter.  The  reason  for  such  laws  is 
the  adoption  of  the  conception  of  liberty  as  a  function  in  place  of 
liberty  as  a  right.  It  is  needless  to  call  attention  to  the  endless 
controversies  that  have  arisen  in  this  matter  and  that  still  remain 
unsolved  in  most  countries.  I  believe  that  the  chief  cause  of  these 
controversies  is  that  almost  everywhere,  and  it  must  be  admitted, 
particularly  in  France,  the  problem  has  been  badly  stated.  One 
political  party  without  dissent  has  demanded  laws  limiting  the 
1  Act  July  8,  1890,  Arts.  1,  4,  and  5. 
83 


§   11]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

working  hours  per  day  on  the  basis  of  the  struggle  of  classes.  This 
party  has  claimed  that  the  legislator  should  intervene  to  protect 
the  workmen  against  the  capitalist  who  was  exploiting  him.  And 
to  this  it  has  been  answered,  not  indeed  without  force,  that  be- 
tween master  and  servant,  between  employer  and  employee,  a  con- 
tract exists  which  must  remain  free,  and  that  the  legislator  can  no 
more  interfere  in  the  contract  of  labor  than  he  can  in  other  contracts. 

The  problem  is  poorly  stated.  No  question  of  liberty  of  con- 
tract enters  here.  The  question  is  simply  to  ascertain  whether  by 
working  every  day  beyond  a  certain  number  of  hours,  the  laborer 
injures  his  health,  his  life,  his  intellectual  and  moral  individuality. 
Once  the  fact  is  established  that  he  does,  the  legislator  should 
interfere  to  prevent  the  healthful  maximum  period  of  labor  from 
being  exceded.  By  doing  so  he  is  only  protecting  human  life  as  a 
social  asset.  The  law  should  interfere  not  only  when  the  workman 
labors  for  another,  but  when  he  labors  in  his  own  interest.  The 
essential  aim  of  the  law  is  not  so  much  to  protect  the  workman  from 
his  employer  as  to  protect  the  workman  from  himself  and  in  spite 
of  himself.  Here  is  certainly  proof  that  no  question  of  the  right  of 
contract  is  involved. 

In  France  the  law  regulating  the  maximum  hours  of  labor  per 
day  is  very  complex,  but,  nevertheless,  as  yet  very  incomplete.  An 
old  law  of  September  9,  1848,  limits  the  hours  of  work  in  factories 
and  shops  to  twelve  per  day;  under  the  terms  of  the  Millerand 
Act  of  March  30,  1900,  the  hours  of  labor  may  not  exceed  ten  in 
establishments  employing  in  the  same  premises  adult  men, 
minors,  and  women ;  finally,  the  special  enactment  of  June  29, 
1905,  fixes  the  maximum  working  day  in  mines  at  eight  hours.1 
The  Committee  on  Labor  of  the  French  Chamber  of  Deputies  is 
now  considering  a  law  to  fix  the  working  day  in  all  industrial 
establishments  at  a  uniform  maximum  of  ten  hours.2 

1  When  this  was  written,  the  Committee  on  Mines  of  the  Chamber  of 
Deputies  was  considering  a  law  relative  to  an  eight  hour  day  in  mines, 
which  was  to  modify  and  enlarge  the  Law  of  June  29,  1905.  After  having 
been  voted  by  the  Chamber,  it  was  passed  with  a  few  changes  by  the 
Senate.  The  Committee  of  the  Chamber  of  Deputies,  desirous  of  realiz- 
ing i!i«'  reform,  made  certain  concessions  fco  the  Senate  and  the  Chamber 

d  I  lie  new  law  in  the  session  of  March  :',(),  1912.     Cf.  Duguit,  "Traite 
de  droil  eon  titutionnel"  (1911),  II.  pp.  64  et  seq. 

2  In  the  session  of  February  8,  1912,  the  Chamber  of  Deputies  reached 
the  discussion  of  1  he  law  proposing  to  fix  the  working  day  as  a  general  rule 
at  ten  hours.  The  discussion  has  not  yet  been  concluded.  [On  November 
26,  L912,  the  French  Legislature  adopted  a  Code  of  Labor;  cf.  Dalloz, 
"Recueil  Periodique",  1912,  IV,  pp.  58  et  seq.  Of  this  Code,  Chap.  Hi 
regulates  the  normal  maximum  day  of  work.  By  Art.  (>,  in  shops  and 
factories  it  is  fixed  at  12  firs.;    by  Art.  7,  if  adults  and  minors  work  to- 

84 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§   12 

What  has  just  been  said  regarding  a  maximum  working  day  is 
true  of  a  weekly  day  of  rest.1  The  legislator  certainly  may  aot 
prohibit  during  any  day  of  the  week  chosen  at  random  the  running 
of  commercial,  industrial,  or  agricultural  establishments.  If  he 
did,  I  would  not  say  that  he  was  impairing  the  liberty  of  commerce 
and  of  industry,  for  I  deny  that  such  a  right  exists ;  I  would  say 
that  he  was  impeding  the  free  development  of  social  forces  and  so 
exceeding  his  powers.  But  the  law  may  and  should  prohibit  work- 
men from  laboring  more  than  six  consecutive  days  —  that  is  to  say, 
it  should  prevent  them  from  working  the  seventh  day  —  once  it  is 
established  as  a  fact  that  uninterrupted  labor  transcends  human 
forces  and  injures  the  work-value  of  each  individual.  This  repre- 
sents the  point  of  view  adopted  by  the  French  Act  of  July  13,  1908. 
Contrary  to  a  prevalent  opinion,  it  does  not  require  that  commer- 
cial or  industrial  establishments  be  closed  during  some  one  day  of 
the  week,  but  that  workmen  should  rest  the  seventh  day,  naturally 
Sunday.  Furthermore,  it  gives  a  large  liberty  to  appoint  a  day  of 
rest  to  each  of  the  units  of  the  working  force  by  turn. 

§  12.  Statutes  relating  to  Workmen  and  Pensions.  —  By  way 
of  conclusion,  let  me  add  that  the  new  conception  of  liberty  as  a 
function  explains  all  that  new  body  of  law  imposing  positive  obliga- 
tions upon  the  individual.  A  law  imposing  upon  all  the  obligation 
to  work  would  be  perfectly  justifiable.  Perhaps  the  enforcement 
of  such  a  law  would  be  rather  difficult ;  but  the  difficulty  might  be 
solved  by  laying  a  specially  heavy  tax  upon  those  who  remain  idle. 
I  know  of  no  such  law  as  yet,  and  it  probably  will  not  be  necessary 
for  the  legislature  to  interfere  in  this  way;  since  in  modern  society, 
where  competition  is  so  keen  and  the  struggle  for  life  so  bitter,  the 
idle  will  of  necessity  disappear,  crushed  by  the  forces  of  society. 

The  laws  of  obligatory  education  fall  also  under  this  new  concep- 
tion of  liberty.  The  legislator  has,  without  a  doubt,  the  duty  and 
power  to  require  that  everyone  receive  a  minimum  of  education. 
When  the  Republican  Party  in  France  voted  the  Act  of  March 
28, 1802,  providing  for  obligatory  attendance  in  the  primary  schools, 
the  Catholic  Party  claimed  that  it  was  an  invasion  of  the  liberty 

gether,  10  hrs. ;  by  Art.  14,  minors  over  13  and  under  18,  and  women,  at 
10  hrs. ;   Chap.  IV  provides  for  a  weekly  day  of  rest.  —  Tiiansi..) 

1  I  knew  that  I  was  here  touching  upon  a  very  delicate  topic  at  that 
time  in  Buenos  Aires.     When  I  arrived  in  the  city,  August   19,  1911,  a 

police  ordinance  had  just  ordered  closed  on  Sundays  all  commercial  houses 
including  restaurants  and  cafes.  The  measure  had  aroused  very  intense 
opposition,  which  died  down  shortly  after  when  the  city  administration 
promised  to  enforce  the  law  with  the  greatest  tolerance  in  the  case  of 
restaurants  and  cafes. 

85 


§  12]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

of  the  parent  as  the  head  of  the  family.  Certainly,  obligatory 
education  is  in  contradiction  with  the  conception  of  liberty  as  a 
right,  as  defined  in  the  "  Declaration  of  the  Rights  of  Man  "  of 
1789,  and  with  parental  authority  under  the  Civil  Code.1  On  the 
other  hand,  obligatory  education  is  a  necessary  consequence  of  the 
conception  of  liberty  as  a  function  ;  since  it  is  undoubtedly  within 
the  power  and  duties  of  the  legislature  to  require  that  the  individ- 
ual receive  that  minimum  of  education  indispensable  for  him  to  be 
a  social  value  and  to  accomplish  his  work  in  the  social  laboratory.2 
And  lastly,  these  are  the  ideas  that  inspire  the  obligatory  insur- 
ance laws,  and  in  particular  the  Act  of  April  5,  1910,  which  created 
obligatory  pensions  in  France  for  laborers  and  peasants.  Every 
employee  or  workman  is  obliged  to  put  aside  out  of  his  wage  a  cer- 
tain sum  which,  added  to  the  contribution  of  the  employer  and  the 
State,  provides  a  pension  for  him  at  the  age  of  65  years.3  Ideas 
have  so  progressed  in  the  direction  we  have  been  indicating  that 
the  obligatory  phase  of  the  law,  though  still  warmly  contested  a 
few  years  ago,  was  voted  by  a  large  majority  in  the  French  Cham- 
ber. True,  the  application  of  the  Act  meets  with  some  resistance 
throughout  the  country ;  but  the  present  is  a  period  of  transition 
and  there  is  no  doubt  that  a  few  years  hence  the  laboring  classes, 
then  better  enlightened,  will  accept  its  general  application. 

1  Articles  371  et  seq. 

2  Cf.  on  obligatory  education:  Duguit,  "Traite  de  droit  constitution- 
al", Vol.  I,  pp.  76  et  seq. 

3  By  the  Budget  of  February  27,  1912,  Arts.  54-62,  modifications  were 
made  in  the  Act  of  April  5,  1910.  Those  to  Art.  55  deserve  mention. 
The  normal  age  at  which  the  pension  commences  is  reduced  from  65  to 
60  years ;  however,  the  assured  has  the  right  of  postponing  payment  to 
65  years  ;  and,  according  to  the  terms  of  Art.  57,  the  maximum  augmenta- 
tion by  the  State  has  been  raised  from  60  to  100  francs. 


8o 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC. 


[§13 


III.     The  New  Conception  of  Liberty  (continued) : 

Autonomy  of  the  Will,  Artificial  Personality,  and 
Associations 


§  13.  Autonomy  of  the  Will  as  an 
Element  of  Liberty  in 
General. 

§  14.  Provisions  of  the  Napoleonic 
Code  and  the  Argentine 
Civil  Code  establishing 
this  Principle. 

§  15.  The  Bearer  or  Subject  of 
Right ;  Every  Subject  of 
Right  is  a  Subject  of  Will. 

§  1G.  Desperate  but  Fruitless 
Efforts  of  Jurists  to  Recon- 
cile this  Conception  with 
the  Facts  of  Modern  Life. 


§  17.  The  Doctrine  of  Artificial 
Personality. 

§  18.  The  Movement  toward 
Association. 

§  19.     Futility  of  the  Old  Doctrine. 

§  20.  Elimination  of  the  idea  of  a 
Bearer  or  Subject  of 
Right. 

§21.  Legal  Protection  Based  upon 
the  Social  Purpose  or 
Function  of  the  x\ct. 

§  22.  The  Idea  of  Purpose  in  the 
French  Law  of  Associa- 
tions of  July  1,  1901. 


§  13.  Autonomy  of  the  Will  as  an  Element  of  Liberty.  —  The 
autonomy  of  the  will,  as  I  have  already  said,  is  an  element  of 
liberty  in  general.  It  is  juridical  liberty,  and  may  be  defined  in 
brief  as  the  power  of  man  to  create  by  an  act  of  the  will  a  state  of 
facts  productive  of  legal  result,  whenever  his  act  has  a  lawful 
object.  In  other  words,  according  to  the  individualistic  system, 
the  autonomy  of  the  will  is  the  power  to  will  juridically,  and  hence 
the  right  to  have  one's  will  upheld  by  society. 

To  the  autonomy  of  the  will  is  logically  related  the  question  of 
the  bearer  or  subject  of  right,  and  so  also  to  the  problem  of  artificial 
personality.  These  are  matters  of  capital  importance,  in  which 
an  evolution  is  going  on  in  every  way  analogous  to  the  change  I 
have  been  describing,  that  is  to  say,  an  evolution  in  the  realistic 
and  social  sense.1 

We  here  reach  the  very  heart  of  the  matter,  and  it  presents  great 
difficulty.  However,  I  have  not  thought  that  it  should  be  avoided, 
because  it  is  the  fundamental  problem  of  modern  law.  I  shall 
endeavor  to  present  the  matter  in  a  strictly  logical  manner. 

1  The  problem  of  the  bearer  or  subject  of  right  and  of  artificial  personal- 
ity has  lately  been  the  object  of  important  and  interesting  studies,  the 
mosl  important  of  which  are:  Michoud,  "Theorie  de  la  personnalite* 
morale"  (1906),  Part  I ;  Saleilles,  "  De  la  personnalite"  juridique"  1 1910) ; 
'Les  notions  fondamentales  du  droit  privfi"  (1911),  notably 
ehap.  ii.  entitled:  "La  notion  de  sujel  de  droit",  pp.  320  <t  seq.;  A. 
I./ri.  "La  socigte"  el  I'ordre  juridique"  (1911),  notably  the  chapter  en- 
titled: "Le  e<*>te  objeetif  et  If  cot.'  subjectif  du  droit"',  pp.  244  et  seq. 
A  more  detailed  bibliography  will  lie  found  in  the  author's  "Traite  de 
droit  constitutional",  Vol.  I,  pp.  2,  S,  and  44. 

87 


§  14]  PART   I      READJUSTMENT    OF   LAW  [Chap.    Ill 

§  14.  Provisions  of  the  Napoleonic  Code  on  this  Subject.  —  First 
of  all,  let  us  carefully  define  the  principle  of  the  autonomy  of  the 
will  under  the  individualistic  system  and  determine  its  conse- 
quences. I  cannot  do  better  than  refer  to  the  various  provisions  of 
the  Argentine  Civil  Code,  which  was  evidently  drafted  by  a  great 
legal  mind  desirous  of  creating  a  work  at  once  theoretical  and 
practical.  In  this  Code  the  system  of  the  autonomy  of  the  will 
stands  out  very  clearly  with  all  its  elements.  It  is  also  evident  in 
the  Napoleonic  Code,  and  it  is  from  the  French  Code  that  most 
modern  legislation  has  borrowed.  But  the  principle  is  implied 
there  rather  than  expressed. 

The  only  Articles  in  the  Napoleonic  Code  which  enact  the  prin- 
ciple —  and  even  then  in  an  obscure  manner  —  are  Article  6, 
1134,  Par.  1,  and  Article  1156.  By  these  it  is  provided  that: 
"  Contracts  between  private  individuals  cannot  set  aside  laws 
affecting  public  order  and  good  morals  " ;  *  that  "  Agreements 
legally  made  shall  constitute  the  law  for  those  who  have  entered 
into  them  "  ;2  and  that  "  In  contracts  the  common  intent  of  the 
contracting  parties  is  to  be  sought  rather  than  the  literal  sense  of 
the  words."  3 

In  the  Argentine  Civil  Code  I  find,  on  the  other  hand,  several 
Articles  formulating  the  principle  and  its  consequences  very 
clearly  :  "A  general  renunciation  of  the  law  is  without  effect ;  but 
rights  conferred  by  law  may  be  waived,  provided  that  such  law  only 
affects  the  interests  of  individuals  and  that  such  waiver  is  not 
prohibited  "  (Article  19) ;  "  All  entities  susceptible  of  acquiring 
rights  and  contracting  obligations  are  considered  persons  "  (Article 
30)  ;  and  lastly:  "  Juridical  acts  are  lawful  acts  of  the  will,  having 
for  their  immediate  object  to  establish  legal  relations  between 
persons,  or  to  create,  modify,  transfer,  preserve,  or  destroy  rights  " 
(Article  944).  These  are  provisions  of  cardinal  importance,  re- 
markably well  expressed  and  which  in  their  concise  terms  summa- 
ri/,;1  all  the  consequences  of  the  juridical  autonomy  of  the  individual. 

§  15.  Every  Subject  of  a  Right  is  a  Subject  of  Will.  —  In  law, 
persons  arc  all  those  entities  susceptible  of  acquiring  rights.  The 
person  is  the  subject  of  right,  that  is  to  say,  the  entity  possessing 
rights.  But,  since,  as  I  think  I  have  already  shown,4  subjective 
right  can  only  be  a  power  to  will,  it  follows  that  every  subject  of 
right  is  a  subject  of  the  power  to  will,  and  that  nothing  can  be  the 
subject  of  right  that  is  not  a  being  endowed  with  will. 

!Art.  6.  3  Art.  1156. 

2  Art.  1134,  Par.  1.  *  Cf.  Topic  I. 


Chap.  Ill]     changes  in  contract,  property,  etc.  [§  16 

Michoud  has  tried  to  maintain  the  contrary  by  arguing  from 
Jhering's  definition:    "Subjective  right  is  an  interest   protected 

by  society."  But  Michoud's  entire  system  crumbles,  since  it  is 
impossible  to  maintain  that  subjective  right,  even  if  based  upon 
interest,  is,  in  the  last  analysis,  anything  but  the  power  to  will.1 
Every  being  thus  endowed  with  will  possesses  a  body  of  rights  which 
the  law  confers  upon  him  or  at  least  recognizes  in  him,  and  which 
con  ititute  his  status  or  his  legal  sphere  of  action.  This  stands  out 
in  Articles  19  and  30  just  quoted  from  the  Argentine  Code. 

The  subject  of  right  has  a  free  and  autonomous  will.  In  princi- 
ple he  can  by  an  act  of  his  will  modify  his  legal  status  or  sphere  of 
action,  provided  always  that  he  wills  what  is  not  prohibited  by 
I  In  this  way  he  performs  a  juridical  act,  that  is  to  say,  an  act 

whi  :h  will  be  protected  by  society,  because  it  is  an  act  of  will  having 
a  purpose  allowed  by  law. 

The  effect  of  this  juridical  act  will  be  to  diminish  the  legal  status 
or  sphere  of  action  of  one  subject  of  right  and  to  increase  that  of 
another  ;  in  the  words  of  Article  944  of  the  Argentine  Civil  Code,  to 
establish  a  juridical  relation.  In  this  way  every  state  of  facts  pro- 
ductive of  legal  result  leads  back  to  a  relation  between  two  subjects 
of  right,  that  is  to  say,  two  subjects  of  will,  one  of  whom  possesses 
a  right  and  the  other  an  obligation. 

Under  the  individualistic  system  the  theory  of  the  autonomy  of 
the  will  is  briefly  reducible  to  the  four  following  propositions : 

1.  Every  subject  of  right  must  be  a  subject  of  will. 

2.  Every  act  of  the  will  performed  by  a  subject  of  right  is  pro- 
tected as  such  by  society. 

3.  The  protection  of  the  act  is  conditioned  upon  the  lawfulness 
of  its  purpose. 

4.  Every  state  of  facts  productive  of  legal  result  is  a  relation 
between  two  subjects  of  right,  one  of  whom  is  the  active  subject 
and  the  other  the  passive  subject. 

§  16.  Efforts  to  Reconcile  this  Conception  with  Facts  of  Life.  — 
As  logic  it  is  perfect ;  it  is  a  rigorous  deduction  from  the  individual- 
istic premi  <\  But  there  is  one  misfortune  :  it  no  longer  agrees  in 
the  least  with  the  facts.  There  was  a  time  in  history  when  this 
system  might  have  found  its  justification.  It  was  adapted  to  a 
society  that  was  essentially  individualistic,  such  as  Roman  society 
and  even  European  and  American  society  at  the  commencement  of 
the  1800s.  But  it  is  in  absolute  opposition  to  the  social  and  group 
tendencies  of  our  time.  And  the  jurists  (they  still  are  numerous) 
1  Cf.  above,  p.  5,  note  2. 
89 


§  16]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

who  have  remained  faithful  to  the  individualistic  and  metaphysical 
conception,  which  they  regard  as  an  impregnable  doctrine,  are 
making  desperate  efforts  and  producing  prodigies  of  subtlety  to 
force  at  all  costs  all  the  complex  facts  of  modern  life  into  the  narrow 
frame  of  this  out-grown  system. 

Bekker  l  imagined  that  very  ingenious  and  subtle  theory  of  the 
bearer  or  subject  of  a  right,  composed  of  two  distinct  elements : 
the  "  Geniisser  "  and  the  "  Verfiiger",  or  the  element  which  profits 
and  the  element  which  exercises  the  will ;  Gierke  2  employed  his 
vast  learning  to  establish  the  reality  of  collective  personality ; 
Zitelmann  3  had  recourse  to  a  logic  worthy  of  Hegel  to  demonstrate 
the  reality  of  the  collective  will ;  Jellinek  constructed  a  powerful 
system  of  public  law  based  entirely  upon  the  predication  of  per- 
sonality to  the  State.4  In  France  may  be  mentioned  Geny, 
Hauriou,  Michoud,  Demogue,  Saleilles,5  the  last  of  whom  with  a 
keen  and  penetrating  mind  attempted  an  impossible  reconciliation 
between  the  realistic  and  metaphysical  tendencies. 

The  conflict  is  irreconcilable.  It  has  been  very  well  brought 
out  in  an  article  by  Michoud,  written  for  the  occasion  of  Gierke's 
seventieth  birthday.  In  the  "  Festschrift  "  offered  to  this  eminent 
jurist  Michoud  wrote :  "  In  the  field  of  public  law  the  battle  is 
being  waged  between  those  who  would  maintain  the  old  concep- 
tions of  private  law,  that  is  to  say,  of  legal  personality,  of  subjective 
right,  of  the  necessity  of  mutuality  in  juridical  facts,  etc.,  and  those 
who,  holding  these  conceptions  narrow,  arbitrary,  and  over- 
formalistio,  would  substitute  conceptions  that  more  nearly  ap- 
proach social  reality."  Michoud  is  right.6  But  the  two  camps  are 
not  at  grips  in  the  field  of  public  law  alone ;  but  also  in  that  of 
private  law.     In  both  cases  the  same  combatants,  the  same  strug- 

x"Zur  Lehre  vom  Rechtssubjekt",  "Jahrbiicher  fiir  die  Dogmatik" 
(1873),  XII.  pp.  1  et  seq. 

2  "Genossenschaftsrecht"  (4  vols.,  1881-1885);  "Genossenschafts- 
theorie"  (1887);  "Das  Wesen  der  menschlichen  Verbande"  (1902); 
"Johannes  Althusius  und  die  Entwicklung  der  natiirrechtlicken  Staats- 
theorien"  (1902). 

■!  "  Begriff  und  Wescn  der  sogenannten  juristichen  Personen"  (1880). 

4  "System  der  offentlichen  Rechte"  (2d  ed..  1905);  "Allgemeinea 
3ta  I  reeht"  (2d  ed.,  1905).  Cf.  Holder,  " Naturliehen  und  juristichen 
Personen"  (1905);  Binder,  "Das  Problem  der  juristichen  Personlichkeit" 
(1907);  o.  Mayer,  "Die  juristiche  Person  und  ihre  Verwertbarkeil  im 
bflfentliehen  Recht"  (1908);  Bematzick,  "Kritische  Studien  iiber  den 
Begriff  der  juristichen  Personen",  "Arehiv  des  offentlichen  Rechts" 
(1890),  pp.  l.V.i  et  seq. 

'"De  la  personnalite*  juridique,  histoire  et  theories"  (1910). 

■  Michoud,  "La  personnalite"  et  lcs  droits  subjectifs  de  I'fitat  dans  la 
doctrine  francaise  contemporaine",  extract  from  his  "Festschrift"  in 
honor  of  Gierke  (1911),  p.  493. 

90 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§   17 

gle.  A  decisive  victory  for  realism  is  at  hand.  Every  meta- 
physical conception  must  be  banished  from  the  science  of  law  as 
they  have  been  banished  from  the  other  sciences ;  this  is  the 
price  of  the  law's  progress. 

Let  us  now  take  up  in  turn  each  of  the  four  elements  of  the  indi- 
vidualistic system  of  the  autonomy  of  the  will  and  show  by  the 
evidence  of  facts  how  it  is  disappearing  or  being  transformed. 
I  am  not  sufficiently  acquainted  with  Argentine  law  to  make  any 
positive  statement  regarding  it,  but  I  am  disposed  to  believe  that 
the  statutes  and  the  cases  have  gone  a  little  further  in  France  than 
in  that  country. 

§  17.  The  Doctrine  of  Artificial  Personality.  —  The  first  proposi- 
tion may  be  thus  stated  :  Every  subject  of  right  must  be  a  subject 
of  will.  It  follows,  evidently,  that  there  is  no  subject  of  right 
except  where  there  is  will,  and  that  no  entity  is  juridical,  that  is  to 
say,  no  entity  can  actively  figure  in  legal  relations,  unless  endowed 
with  will.     Personality  exists  in  law  only  where  there  is  will. 

So  long  as  the  activities  of  society  were  generally  carried  on  by 
individuals,  the  artificiality  of  this  proposition  and  its  incongruity 
with  the  facts  were  not  apparent.  To  explain  the  legal  personality 
of  a  minor  or  lunatic  he  was  declared  to  have  a  constructive  or 
potential  will  sufficient  to  make  him  a  subject  of  right.  Doubt- 
even  in  the  most  individualistic  communities,  certain  groups 
have  always  existed  whose  capacity  to  act  juridically  had  to  be 
recognized  and  whose  status  had  to  be  guaranteed.  It  was  im- 
possible to  discover  any  will  in  them,  even  potential.  There  was, 
of  course,  the  will  of  the  individuals  forming  the  group,  or  that  of 
the  donor  of  the  fund.  But  these  individual  seats  of  will  could 
not  serve  as  a  basis  for  a  legal  personality  in  the  group  itself. 
The  fiction  of  an  artificial  person  was  then  imagined.  Only  individ- 
uals were  declared  to  be  natural  persons;  the  group  possessed  no 
will  apart  from  its  members  ;  but  the  law,  by  its  absolute  authority, 
was  able  to  assign  legal  personality  to  it.  Consequently  a  group 
constituted  a  juridical  person  only  by  action  of  the  legislative  or 
the  executive  power,  wherever,  in  the  latter  case,  an  organic  law 
had  given  the  executive  authority  to  this  effect. 

As  a  doctrine,  this  solution,  known  as  the  entity  theory,  was 
developed  principally  by  Savigny.1  For  a  long  time  it  was  taught 
as  a  sort  of  incontrovertible  doctrine;  I  remember  that  when  I 
studied  law  it  was  taught  as  a  self-evident  truth.     The  majority 

1  "Traits  de  droit  romain"  (French  translation  by  Guenoux),  Vol.  II, 
pp.  223  et  seq. 

91 


§  17]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

of  legal  systems  adopted  the  theory.  It  was  that  of  the  Napoleonic 
Code  ;  it  persists  in  Argentine  law.  The  Argentine  Code  contains 
a  series  of  very  explicit  and  well-drafted  articles  that  form  an 
exceedingly  clear  and  complete  expression  of  the  entity  theory. 
For  example,  Article  31  declares  that :  "  Persons  possess  either  an 
artificial  or  natural  existence  ..."  and  Article  32  says :  "  All 
those  entities  susceptible  of  acquiring  rights  or  of  contracting 
obligations,  not  being  persons  possessing  a  natural  existence,  are 
persons  having  an  artificial  existence  or  juridical  persons."  Article 
33  then  enumerates  the  principal  classes  of  juridical  persons.  Some 
have  a  necessary  existence  ;  such  for  example  is  the  State.  Others 
have  a  potential  existence ;  these  are  institutions  recognized  of 
public  utility,  public  corporations,  associations,  stock  companies, 
and  partnerships.  Lastly,  the  most  fundamental  of  all  provisions, 
Article  45,  declares  that :  "  The  existence  of  public  corporations, 
associations,  funds,  etc.,  as  juridical  persons  commences  from  the 
day  when  they  were  authorized  by  the  legislature  or  the  executive, 
after  approval  of  their  articles  of  incorporation,  and  ratification 
by  the  bishop  where  they  are  of  a  religious  character."  So,  under 
Argentine  Law,  the  group  does  not  naturally  of  itself  enjoy  juridical 
personality.  It  can  possess  such  existence  only  by  express  declara- 
tion of  the  law  or  a  concession  from  the  government. 

§  18.  The  Movement  towards  Association.  —  Such  a  system  can 
persist  in  a  country  where  associations  are  relatively  few.  In  the 
Argentine  Republic,  only  those  public  corporations  and  associations 
upon  which  the  government  confers  personality  are  subjects  of 
right.  In  countries  where  a  movement  towards  associated  activity 
is  strong  such  a  condition  would  be  impossible.  In  certain  Euro- 
pean countries  a  movement  towards  associated  activity  has  been 
proceeding  with  extraordinary  vigor  for  about  half  a  century  and 
particularly  during  the  last  twenty-five  years.  Then  all  the  arti- 
ficiality, narrowness,  and  incongruity  of  the  entity  theory  came  to 
stand  forth  clearly.     It  broke  like  a  straw. 

This  movement  toward  associated  activity  has  made  itself  felt 
mosl  strongly  in  three  European  countries,  Germany,  England, 
and  France. 

In  France  it  is  deserving  of  particular  study.  I  may  not  here 
make  such  a  study,  but  I  especially  desire  to  emphasize  the  fact 
1  hat  t  he  powerful  reaction  against  the  results  of  the  French  Revolu- 
tion ha-  manifested  itself  with  unusual  strength  in  this  movement 
toward  association.  The  Revolution  believed  that  association 
was  the  very  denial  of  individual  liberty,  and,  on  enumerating  the 

92 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§    19 

rights  of  the  individual,  the  liberty  of  association  was  intentionally 
omitted.  The  Revolution  even  categorically  forbade  a  certain 
class  of  associations,  viz.:  industrial  organizations;  and  the  law- 
known  as  the  Le  Chapelier  Law,  of  June  27th,  1791,  remained  in 
force  until  the  Act  of  March  21,  1884,  regulating  trade  syndicates. 
But  all  these  legislative  prohibitions  proved  worthless.  Facts 
are  stronger  than  the  decrees  of  man,  and  the  whole  of  France  is 
covered  by  a  vast  network  of  associations  of  every  kind ;  labor 
organizations,  every  class  of  industrial  organization,  even  associa- 
tions of  government  employees,  mutual  associations,  benefit 
societies,  literary,  scientific,  and  artistic  societies.  Willingly  or 
not,  the  legislator  has  been  forced  to  admit  an  accomplished  fact 
and  finally  to  sanction  institutions  which  have  sprung  up  naturally 
and  spontaneously  in  spite  of  prohibitive  laws.  In  this  way  in 
1 88  1^  the  law  came  to  recognize  industrial  associations  or  unions,  in 
1S9S  mutual  aid  societies,  and  finally  in  1901  the  liberty  to  asso- 
ciate in  general.  At  that  time,  it  is  true,  a  question  very  closely 
related  to  the  right  to  associate  arose  in  France  and  to  a  certain 
extent  distorted  our  legislation.  The  question  was  that  of  the 
religious  orders.  I  regret  to  say  that  politics  dominated  the  legis- 
lation on  the  subject ;  I  shall  not,  therefore,  consider  it. 

Meanwhile  in  Germany  a  similar  movement  was  going  on.  It 
is  less  striking  there,  not  because  it  is  less  deep  seated  or  extensive, 
but  because  German  law  has  never  shown  the  resolute  opposition 
of  the  French  legislator  to  associations  and  corporations.  Like 
France,  Germany  is  covered  with  associations  and  corporations  of 
all  kinds,  and  the  tide  shows  no  sign  of  ebbing. 

A  surrender  to  the  force  of  facts  was  necessary.  Legal  protection 
to  associate  activity  cannot  be  left  to  the  arbitrary  dictates  of  a 
government.  It  is  absolutely  necessary  that  every  group,  by 
reason  of  the  fact  that  it  pursues  a  lawful  object,  be  allowed  to 
organize  freely  and  find  in  law  the  requisite  protection  to  it-  acts. 

Furthermore,  the  entity  theory  explains  nothing.  A  group 
either  has  no  will  distinct  from  its  members,  and  in  that  case  it 
cannot  be  a  bearer  or  subject  of  right,  and  the  law,  powerful  though 
it  is,  cannot  produce  what  is  non-existent ;  or  a  group  has  in  fact 
a  will  distinct  from  that  of  its  members,  and  in  that  ease  it  is 
naturally,  of  itself,  a  subject  of  right  and  the  intervention  of  the 
legislature  or  the  executive  is  unnecessary.  For,  need  it  be  given 
what  it  already  possesses? 

§  19.  Futility  of  the  Old  Doctrine.  —  This  explains  why  about 
forty  years  ago  there  originated  among  German  and  French  jurists 

93 


§  19]  PART    I      READJUSTMENT    OF   LAW  [Chap.    Ill 

an  effort  which  is  surely  one  of  the  most  curious  known  to  legal 
history.  The  attempt  was  made  to  prove  and  explain  how,  inde- 
pendent of  any  agency  of  the  law,  an  association  organized  for  a 
lawful  object  was  undoubtedly  a  subject  of  right  and  possessed  a 
juridical  personality  distinct  from  its  members. 

Of  the  Germans  we  have  already  cited  the  eminent  name  of 
Gierke.  He  developed  the  essential  elements  of  this  theory  with 
marvelous  art,  upon  the  postulate  of  a  "  constructive  legal  voice."  1 
His  work  was  taken  up,  examined  more  profoundly,  and  stated 
more  precisely,  in  the  field  of  public  corporations,  by  Jellinek. 
Bekker  conceived  the  ingenious  theory  of  the  composite  subject  of 
right,  made  up  of  two  elements,  of  whom  one  profits  ("  Geniisser  ") 
and  the  other  acts  ("  Verfiiger ").  The  name  of  Zitelmann 
has  also  been  cited.  By  subtle  analysis  he  attempted  to  show 
that  there  resided  in  reality  in  every  group  a  will  distinct  from  its 
members  which  served  as  a  basis  for  a  collective  personality.  He 
went  so  far  as  to  say  tha,t  if  a  fund  may  be  a  subject  of  right  it  is 
because  the  will  of  the  donor  of  the  fund,  though  he  died  perhaps 
centuries  ago,  survives  and  becomes  the  subject  of  right.  I  have 
already  spoken  of  the  vigorous  efforts  made  by  Michoud  in  France 
to  construct  a  complete  theory  of  collective  personality.2  It  was 
ingenious  in  appearance,  but  it  led  in  the  end  either  to  the  classic 
theory  of  an  artificial  entity  or  to  the  adoption  of  Bekker's  doctrine, 
combined  with  Gierke's  and  Jellinek's  theory  of  a  constructive 
legal  voice.3     Lastly,  Saleilles  has  recently  made  a  very  searching 

1  In  two  celebrated  works  :  " Le  droit  des  associations "  and  "La  theorie 
des  associations." 

-  Cf.  liis  notable  work:  "Theorie  de  la  personnalite  morale." 
3  Michoud's  doctrine  comes  to  this:  Subjective  right  is  not  the  power 
to  will:  it  is  simply  an  interest  (hat  is  protected,  viz. :  "the  interest  pos- 
sessed by  a  person  or  group  of  persons,  and  legally  protected  through  the 
power  recognized  in  the  will  to  represent  and  to  defend  that  interest" 
{loc.  cit.,  p.  1().">).  Consequently  a  subject  of  right  will  be  "any  collective 
or  mdividual  l>eing  whose  interest  is  thus  guaranteed,  even  though  the 
will  which  manifests  the  interest  does  not  belong  to  that  being  in  a  meta- 
physical sense.  It  is  enough  that  the  will  can  be  attributed  to  such  a 
being  by  society  or  be  manifest  in  its  acts  for  the  law,  without  deviating 
from  its  role  of  interpreter  of  social  phenomena,  to  be  obliged  to  regard 
such  will  as  belonging  to  it "  (ibid.,  p.  105).  Now,  even  assuming  interest 
to  be  t he  basis  of  subjecl ive  right,  s1  ill  his  entire  system  crumbles,  if  it  is 
true,  as  I  think  I  showed  io  Topic  I,  that  subjective;  right  is  necessarily  a 
power  to  will.  Cf.  especially  ante,  p.  •">,  note  '_',  and  Duguit,  "Trait  e  de  droit 
constitutionnelle "  (1911),  Vol.  t, p. 2.  Michoud  declares  that  will  is  neces- 
sary; that  this  will  is  attributed  by  society  to  or  is  manifested  by  the  acts 
of  the^ collective  or  individual  entity  which  is  the  subject  of  right;  that 
this  will  is  its  constructive  legal  voice;  and  that  it  is  inseparable  from  the 
entity.  Then,  one  or  t  be  other  must  be  true ;  either  Michoud  must  admit, 
as  we  do,  a  will  pursuing  an  object  protected  by  law  and  so  come  to  deny 
i  truce  of  the  bearer  or  subject  of  right;    or  he  must  maintain  the 

94 


CHAP.  Ill]   CHANGES  IN  CONTRACT,  PROPERTY,  ETC.        [§  20 

but  rather  unfavorable  analysis  of  all  these  doctrines.  His  was  a 
conciliatory  type  of  mind.  He  tried  to  prove  that  at  bottom  all 
these  discussions  have  no  great  importance.  And  he  was  right ; 
they  have,  indeed,  no  importance.  However,  I  cannot  agree  with 
his  general  conclusion  that :  "  As  to  these  doctrines  it  seems  that 
we  are  divided  merely  by  continued  misunderstandings  and  that 
in  agree  upon  a  terminology  would  be  to  dissipate  these  differences. 
This  has  been  my  endeavor."  x 

No,  this  is  not  true.  There  is  a  complete  and  absolute  disagree- 
ment between  those  who  insist  on  maintaining  in  modern  law  the 
metaphysical  and  out-worn  theory  of  a  subject  of  right,  and  those 
who,  like  myself,  demand  that  we  face  the  facts,  rejecting  all 
metaphysical  conceptions,  especially  that  of  subjective  right  and 
of  a  bearer  or  subject  of  right.  With  this  reservation  Saleilles  was 
right.  These  controversies  are  entertaining  intellectual  pursuits, 
nothing  more.  They  are  useless,  for  the  excellent  reason  that  the 
problem  which  they  claim  to  solve  does  not  exist.2 

§  20.  Elimination  of  the  Idea  of  a  Subject  of  Right. — Are 
groups,  associations,  corporations,  funds,  etc.,  by  nature  subjects 
of  right  or  are  they  not  ?  I  do  not  know ;  and  the  question  does 
not  interest  me.  Are  they  or  are  they  not  possessed  of  subjective 
rights?  I  repeat :  I  do  not  know,  and  I  am  quite  indifferent ;  for, 
as  subjective  right  does  not  exist,  the  subject  of  such  a  right  does 
not  exist  either.  The  sole  question  is  one  of  fact.  Is  the  group, 
association,  corporation,  or  fund,  pursuing  a  purpose  which  con- 
forms with  social  solidarity,  as  it  is  conceived  at  a  given  moment 
in  a  given  country,  and  consequently  in  accordance  with  the  law 
of  that  country?  If  so  all  acts  done  with  this  purpose  should  be 
recognized  and  protected  by  law;  and  the  application  of  property 
to  such  a  purpose  should  also  be  protected.  It  is  unnecessary  to 
inquire  whether  a  group  is  a  subject  of  right  with  capacity  to  be  a 
party  to  a  juridical  act ;  the  query  is  simply  whether  the  purpose 
pursued  by  the  group  conforms  with  social  interdependence,  or 
whether  the  particular  act  is  done  with  this  end  in  view.  It  is 
Unnecessary  to  inquire  whether  a  group  is  a  subject  of  right  ca- 

ooneeption  of  a  bearer  or  subject  of  right  and  thus  make  that  subjeel  an 
artificiality  or,  like  Bekker,  a  compound  entity  composed  of  an  element 
which  profits  and  an  elemenl  which  wills,  and  this  is  also  in  reality  a  fiction, 
it  sccins  to  me  difficult  for  Miehoud  to  escape  this  alternative. 

1  Saleilles,  "De  la  pcrsonnalite  juridique"  (1910),  p.  663.  I  desire  to 
express  here  my  affectionate  appreciation  of  this  friend  and  my  boundless 
admiration  for  tins  jurist  whose  death  was  so  premature. 

'  7.  Appendix  II  [omitted  in  this  translation  ;  it  deals  at  greater  length 
"Rita  Michoud's  theory. —  Ed.]. 

95 


§  20]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

pable  of  owning  property ;  property  as  a  subjective  right  exists 
no  more  than  the  other  subjective  rights.  My  test  will  simply  be 
whether  the  property  is  used  for  collective  purposes;  if  those 
purposes  are  recognized  as  conforming  with  social  solidarity,  the 
use  is  to  be  protected.  It  is  needless  to  ask  whether  the  individual 
who  wills  and  acts  with  a  collective  purpose  is  the  "  constructive 
legal  voice  ",  or  is  the  agent  or  representative  of  the  so-called  collec- 
tive personality. 

The  mass  of  useless  subtleties  that  have  grown  up  about  this 
question  is  unbelievable.  The  truth  is  this  :  The  individual  whose 
will  is  determined  by  the  purpose  pursued  by  the  group,  exercises 
hi  3  will  conformably  to  law ;  his  act  is  productive  of  a  result  which 
must  be  protected,  because  what  the  law  protects  primarily  in  a 
juridical  act  is  the  purpose  determining  the  act,  rather  than  the 
will  itself. 

§  21.  Legal  Protection  based  upon  the  Social  Purpose  or  Func- 
tion of  the  Act.  —  Briefly,  then,  we  return  always  to  that  same  fact 
of  social  function,  to  that  realistic  conception  of  social  function 
which  is  everywhere  replacing  the  metaphysical  conception  of 
subjective  right.  Modern  communities  are  not  composed  solely 
of  individuals,  they  are  also  made  up  of  groups.  Individuals  are, 
of  course,  the  cells  that  constitute  the  social  plasm.  But,  the 
cells  are  arranged  to  form  groups.  Each  group  is  charged  with  a 
certain  mission  ;  it,  too,  must  accomplish  a  certain  task  in  the  divi- 
sion of  social  labor.  Every  act  of  will  aiding  in  the  accomplish- 
ment of  this  mission  or  the  realization  of  this  work  must  be  pro- 
tected by  the  community. 

An  act  of  will  remains  an  act  of  will  of  the  individual.  Collective 
will  does  not  exist,  —  or  at  least  no  one  can  prove  that  it  does. 
To  speak  of  the  collective  will  of  groups,  localities,  municipalities, 
corporations,  nations,  is  to  employ  an  abstract  term.  When  the 
will  of  an  individual  is  determined  by  a  collective  purpose,  it  still 
remains  individual.  The  law  no  more  protects  the  collective 
will  than,  in  reality,  it  protects  the  individual  will;  it  does  pro- 
tect and  guarantee  the  collective  purpose  which  an  individual  will 
pursues. 

What  arc  the  groups  that  form,  so  to  speak,  the  nerve  centers  of 
modern  society?  Is  the  family  first  in  importance,  as  some  still 
claim  ?  Or  arc  they  not  the  industrial  groups,  the  classes  of  society 
organized  into  unions  or  syndicates?  I  am  tempted  to  believe  so. 
But  thai  is  purely  a  sociological  question  which  I  prefer  not  to 
touch  upon. 

96 


Chap.    IIlj      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§22 

§  22.  The  Idea  of  Purpose  in  the  French  Law  of  Associations.  — 
Legislators  and  judges,  unconsciously  perhaps,  are  steadily  facing 
about  in  the  direction  that  I  have  indicated.  This  is  proof  of  the 
truth  of  the  idea  that  I  have  been  developing,  and  of  my  early 
statement  that  law  originates  spontaneously,  unknown  to  those 
who  contribute  to  its  confection  and  often  in  spite  of  them.  I 
cannot  take  a  better  example  than  the  well-known  French  Law  of 
Associations  of  July  1st,  1901,  —  often  called  the  Waldeck-Rous- 
scau  Law  from  the  name  of  the  Prime  Minister  who  was  its  sponsor. 

The  Constitution  of  1S48  had  for  the  first  time  in  France  pro- 
claimed the  principle  of  liberty  of  association.  The  declaration 
was  hardly  more  than  philosophical  in  its  results ;  for  over  fifty 
years  passed  without  the  appearance  of  a  law  regulating  the  exer- 
cise of  this  fundamental  liberty.  The  chief  obstacle  to  the  passage 
of  a  law  regulating  the  liberty  of  association  was,  of  course,  the 
problem  of  the  religious  orders.  Yet,  in  spite  of  the  silence  of  the 
law,  in  spite  even  of  legislative  prohibitions,  French  soil,  as  I  said 
before,  came  in  one  way  or  another  to  be  covered  by  all  kinds  of 
associations.  The  pressure  of  facts  made  the  French  Deputies 
pass  the  law  of  1S84  regulating  trade  syndicates  and  the  law  of 
1898  regulating  mutual  aid  societies.  It  still  remained  to  pass  a 
general  law  regulating  the  liberty  of  association.  In  1898-1899 
came  the  Dreyfus  affair  with  its  grave  disturbances  throughout 
the  country.  The  role,  real  or  supposed,  which  was  played  in  that 
affair  by  certain  religious  orders,  afforded  a  pretext  to  the  Govern- 
ment to  present  a  law  which  should  impose  a  Draconian  severity 
upon  religious  orders,  yet  formulate  the  principle  of  liberty  for  all 
other  classes  of  associations,  even  religious,  provided  they  did  not 
possess  the  character  of  a  religious  order.  For  that  reason  the  Law 
of  1901  is  divided  into  two  quite  distinct  parts.  Section  3  relates 
to  religious  orders  and  subjects  them  to  a  penal  regulation  so  rigcr- 
OUS,  in  fact,  as  to  be  the  very  denial  of  liberty  ;  l  and  Sections  1  and 
2  relate  to  associations  not  possessing  the  character  of  a  religious 
order. 

On  reading  this  Act,  one  is  immediately  struck  with  the  fact  tl  ;;t 
the  traditional  expression,  artificial  or  legal  personality,  is  nowhere 
contained  in  it.  Xo  doubt  it  can  be  found  frequently  in  laws  sub- 
sequent to  that  of  1901,  but  it  is,  at  least,  remarkable  that  the  ex- 
pression  is  not  used  in  the  organic  law  of  associations  ;  and  this  fact 
would  seem  to  indicate  that  the  legislator  justified  the  protection 
accorded  to  lawful  associations  upon  other  than  the  unsatisfactory 
1  With  this  part  I  am  not  concerned. 
97 


8  22]  PART  I      READJUSTMENT   OF   LAW  [Chap.    Ill 

grounds  of  legal  personality.  The  exclusion  of  the  term  "  arti- 
ficial personality"  was  not  by  mere  chance,  for  it  appeared  in  the 
draft  of  the  law  as  it  was  submitted  by  Waldeck-Rousseau ;  even  a 
definition  of  artificial  personality  was  attempted  ;  it  was  described 
as  a  legal  fiction.  But  it  was  all  stricken  out  in  the  final  text,  a 
fact  which  is  of  no  little  significance. 

Taking,  now,  the  text  of  the  Act,  we  find  this  new  conception 
which  is  at  the  bottom  of  modern  law,  the  idea  of  purpose,  in  every 
provision.  We  are  not  far  distant  here  from  what  I  have  been 
explaining.  The  modern  legislator  does  not  protect  the  collective 
will  of  the  association,  a  will  that  does  not  exist ;  nor  its  personality, 
also  non-existent;  but  rather  the  collective  aim  pursued  by  its 
members.  Article  1  of  the  Act  defines  an  association,  distinguish- 
ing it  from  a  company  by  reason  of  its  purpose :  "  An  association 
is  the  contract  by  which  two  or  more  persons  permanently  contrib- 
ute in  common  their  knowledge  and  activity  towards  a  purpose 
other  than  the  distribution  of  profits."  Article  2  provides  that : 
"  Associations  of  persons  may  be  formed  freely  without  prior 
authorization  or  decree  of  the  government;  but  they  shall  not 
possess  legal  capacity  unless  they  conform  with  the  terms  of  Arti- 
cle 5  "  ;  and  Article  3  provides  that :  "  Every  association  founded 
upon  an  unlawful  '  cause  '  or  in  view  of  an  unlawful  purpose,  or 
contrary  to  law  or  good  morals,  or  whose  object  is  to  endanger  the 
national  territory  or  the  republican  form  of  government,  is  void 
and  without  effect."  The  function  of  the  object  of  the  association 
again  stands  out  very  clearly  in  the  following  provisions  of  the 
same  Act :  "  Every  association  duly  registered  may  without 
special  authorization  ...  3d.  acquire  such  real  estate  as  is  abso- 
lutely necessary  to  accomplish  its  purpose  " ; 1  "  Such  associations 
(recognized  of  public  utility)  may  perform  all  civil  acts  not  pro- 
hibited by  their  Articles  of  Association ;  but  they  may  not  possess 
or  acquire  other  real  estate  than  that  necessary  to  accomplish  their 
purpose.  .  .  ."  2  Thus  everywhere  throughout  the  Act  the  idea 
of  purpose  is  apparent. 

This  legislation  is  in  contradiction  with  the  conception  of  arti- 
ficial personality  properly  so  called.  For,  if  an  association  has 
juridical  personality,  why  limit  its  sphere  of  activity  to  a  particular 
purpose  ?  Had  the  law  in  its  power  really  conferred  upon  associa- 
tions, established  according  to  certain  rules,  the  attributes  of  a 
subject  of  right,  the  limitation  by  purpose  would  have  no  reason ; 

1  Article  6,  §  3. 

2  Article  1 1  ;   the  words  within  parenthesis  do  not  appear  in  the  Act. 

98 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§  22 

it  would  be  unexplainable.1  On  the  other  hand,  the  whole  Act  is 
made  quite  clear  if  we  realize  that  the  legislator,  perhaps  uncon- 
sciously, was  caught  by  the  great  current  which  is  moving  modern 
law.  Persons  may,  without  prior  authorization,  organize  into 
associations  provided  their  purpose  is  lawful.  Furthermore,  the 
legislator  has  not  defined  a  lawful  purpose.  In  this  he  has  done 
wisely,  because  the  notion  is  essentially  a  changing  one,  varying 
with  the  ideas  of  each  people  and  period  concerning  social  solidarity. 
The  acts  of  the  members  of  the  association,  performed  with  a  law- 
ful aim,  are  secure  under  the  law ;  and  the  use  of  wealth  for  such 
ends  is  also  protected. 

That  in  a  nutshell  is  the  entire  principle  of  the  Act  of  1901.  It  is 
purely  realistic  and  exempt  from  all  those  metaphysical  difficulties 
belonging  to  the  individualistic  system. 

Unfortunately  the  French  legislator  did  not  carry  this  Act  to  its 
logical  conclusion.  He  allowed  himself  to  be  governed  by  a  fear 
that  is  traditional  in  France,  the  fear  of  mortmain,  or  the  apprehen- 
sion of  too  great  expansion  of  the  estates  of  organized  groups  of 
persons.  The  fear  is  absurd  and  in  absolute  contradiction  with  the 
facts.  Nevertheless,  dominated  by  this  superstition,  the  legisla- 
tion of  1901  prohibited  as  a  general  rule  gifts  to  associations,  per- 
mitting them  only  by  way  of  exception  where  the  association  has 

1  To  the  conception  of  purpose  belongs  also  the  rule  of  special  use,  as  it 
is  called,  as  applied  to  administrative  bodies  (municipalities,  departments, 
public  establishments,  and  the  State  itself  perhaps).  Introduced  through 
the  decisions  of  administrative  courts,  the  rule  may  be  considered  to-day 
as  settled.  According  to  it  each  public  "res"  or  fund  is  destined  by  law 
for  one  or  more  determined  uses.  Only  those  juridical  acts  which  are 
performed  in  accord  with  these  uses  are  valid  and  have  effect.  Again  we 
see  the  conception  of  personality  replaced  by  that  of  purpose ;  the  law  no 
longer  protects  the  act  of  will  of  a  fictitious  collective  personality,  but  the 
purpose  which  a  proper  administrative  officer  is  lawfully  pursuing.  Under 
the  entity  theory  it  is  impossible  to  explain  the  rule  of  special  use.  Even 
Michoud  has  to  admit  the  existence  of  the  rule ;  and  to  explain  it  he  is 
forced  to  give  great  importance  to  the  element  of  purpose,  at  the  risk  of 
inconsistency  with  his  doctrine  as  a  whole.  In  a  notable  instance  he 
writes:  "Those  who  believe  in  the  reality  of  collective  personality  are 
obliged  to  admit  the  rule  (the  theory  of  special  use),  because  such  reality 
consists  in  the  existence  of  a  group  of  persons  pursuing  together  a  deter- 
mined interest.  That  alone  is  enough  to  make  purpose  for  the  group 
something  different  from  what  it  is  for  the  individual.  In  the  case  of  the 
group,  ournose  is  a  legal  factor  of  far  greater  importance  than  in  the  case  of 
the  individual.  The  law  does  not  stipulate  the  use  which  man  shall  make 
of  the  juridical  resources  at  his  command.  On  the  other  hand,  it  does 
stipulate  the  use  in  the  case  of  the  group,  when  once  organized,  because 
these  resources  are  intended  to  provide  for  the  accomplishment  of  that 
certain  interest  in  view  of  which  the  group  was  formed."  "La  theorie 
de  la  personnalite  morale  "  (1909),  Part  II,  p.  146.  Is  this  not  simply  the 
purpose  theory?  Cf.  Ripert,  "Le  principe  de  la  specialite  chez  les  per- 
sonnes  morales"  (1906). 

99 


§22] 


PART    I      READJUSTMENT    OF   LAW 


[Chap.    Ill 


obtained  a  government  decree  that  it  is  of  public  utility.  The 
restriction  will  certainly  not  endure  ;  it  is  bound  to  disappear  in  the 
very  near  future  under  the  pressure  of  facts. 

So,  the  first  consequence  of  the  metaphysical  principle  of  the 
autonomy  of  the  will  is  slowly  but  certainly  vanishing  in  all  coun- 
tries that  have  reached  a  like  plane  of  civilization.  In  its  place  is 
developing  a  new  legal  conception  of  vital  importance,  based  upon 
the  realistic  idea  of  social  function. 


IV.     The  Juridical  Act,  and  the  Law  of  Testaments  and 

Contracts 


§  23.     The  Autonomy  of  the  Will. 

§  24.     The  Declaration  of  Will. 

§  25.  The  Object  and  Aim  of  the 
Juridical  Act. 

§  26.  Legal  States  of  Facts  which 
do  not  constitute  Rela- 
tions between  Two  Sub- 
jects. 

§  27.  Private  Foundations  created 
by  Testament. 

§  28.  Decisions  of  the  Courts  on 
this  Subject. 

§  29.  Changes  in  Theory  of  Con- 
tract. 

§  30.  Individualistic  Conception  of 
Contract. 


§31.  Roman  Conception  of  Con- 
tract. 

§  32.  Juridical  Acts  which  are  not 
Contracts. 

§  33.  Conduct  Equivalent  to  Con- 
tract. 

§  34.  Acts  of  Uses  of  a  Public 
Service. 

§  35.  Acts  constituting  so-called 
Collective  Contracts. 

§  36.  Concession  to  operate  a 
Public  Service. 

§  37.  So-called  Collective  Con- 
tracts of  Labor. 

§  38.  Compacts  Equivalent  ■  to 
Laws. 


§  23.  The  Autonomy  of  the  Will.  —  Under  the  same  forces  that 
are  destroying  the  first  consequence  of  the  individualistic  system, 
the  other  consequences  attaching  to  the  principle  of  autonomy  are 
disappearing  or  being  wholly  transformed,  namely,  the  conception 
of  the  juridical  act  and  of  the  juridical  state  of  facts.  So  also  the 
contract,  a  part  of  the  law  which  in  the  individualistic  system  oc- 
cupied an  important  place  and  which,  though  not  necessarily  de- 
rived from  the  conception  of  the  autonomy  of  the  will,  was  yet 
closely  allied  to  it,  is  undergoing  a  profound  change. 

It  may  be  well  to  re-state  the  principles  that  have  so  far  been 
formulated. 

First,  under  the  individualistic  system,  every  subject  of  right 
must  be  a  subject  of  will.  Now,  it  has  been  demonstrated  that  that 
is  not  true ;  that  the  conception  of  a  subject  of  right  is  being  dis- 
carded, and  that  modern  law  is  protecting  the  juridical  acts  of 
groups  though  the  groups  can  not  possibly  be  regarded  as  subjects 
of  right. 

Second,  under  the  individualistic  system,  every  act  of  will  of  a 

100 


Chap.   Ill]      CHANGES  IN  CONTRACT,   property,   etc.  [§  23 

subject  of  right  is  protected  as  such.  Here  we  lay  our  finger  on  the 
cardinal  principle  of  the  individualistic  system  of  our  codes ;  and 
it  is  a  strictly  logical  consequence  of  the  system.  If  we  admit,  as 
under  the  individualistic  conception,  that  each  person  as  such  has 
a  certain  status  or  juridical  sphere  of  action  founded  upon  and 
measured  by  his  natural  ability  to  will ;  if  we  admit  that  the  legal 
status  of  a  group  is  constituted  from  the  combined  legal  spheres  of 
action  of  its  members ;  it  logically  follows  that  the  individual  will 
is  all  powerful,  and  that,  as  it  creates  the  juridical  sphere  of  action 
of  each  member,  it  can  in  principle  modify  them ;  consequently 
a  specific  rule  of  law  must  really  protect  the  will  itself  of  the  indi- 
vidual. 

The  juridical  act  may  be  defined,  then,  as  any  act  of  will  whose 
purpose  is  to  modify  the  status  or  the  legal  sphere  of  action  of  an 
individual.  And  this  is,  in  fact,  the  very  definition  given  by  the 
Argentine  Civil  Code :  "  Juridical  acts  are  lawful  acts  of  the  will 
having  for  their  immediate  object  to  establish  legal  relations  be- 
tween persons,  or  to  create,  modify,  transfer,  preserve,  or  destroy 
rights."  x  It  is  the  will  of  the  individual  that  is  protected ;  and 
for  no  other  reason  than  that  it  is  the  will  of  the  individual.2 

An  abundance  of  texts  prove  that  such  was  indeed  the  thought  of 
those  who  drafted  the  individualistic  codes.  The  Argentine  Code 
has  just  been  cited.  I  have  also  quoted  the  fundamental  provi- 
sions of  the  Napoleonic  Code.3  There  is  another  rule  of  the  Na- 
poleonic Code  upon  which  I  would  lay  special  emphasis :  "In 
construing  agreements  the  mutual  intention  of  the  parties  shall  be 
ascertained  rather  than  the  literal  sense  of  the  terms."  This  is 
certainly  the  rule  which  best  formulates  the  principle  that  it  is  the 
will  itself,  the  inward  intent  of  the  subject,  which  is  productive  of 
legal  result. 

Undoubtedly  this  marked  a  great  progress  over  the  formalism  of 
Roman  law.  But  those  who  drafted  the  Napoleonic  Code,  satu- 
rated (as  we  know)  with  individualism,  were  so  swayed  by  the  prin- 
ciple, that  they  made  the  grave  error  of  admitting  it  even  in  the 

1  Art.  944. 

2  German  jurists  have  called  this  "  Willenstheorie "  or  the  "will  theory." 
It  has  been  worked  out  principally  by  Windscheid,  who  admits  certain 
limitations  to  it,  but  may  be  consulted  to  advantage.  This  celebrated 
author  of  "Pandekten"  gives  the  following  definition  of  a  juridical  act: 
"The  juridical  act  is  a  declaration  of  the  private  intention  aimed  to 
produce  a  legal  result"  (7th  ed.),  Vol.  I,  p.  166  ;  the  work  contains  a  com- 
plete bibliography  of  the  question  ;  cf.  also  Enneccerus,  "  Rechtsgeschaf  t  " 
(1889) ;  Dereux,  "De  Interpretation  des  actes  juridiques  prives  "  (1905) ; 
Duguit,  "L'Etat,  le  droit  objectif  et  la  loi  positive"  (1901),  pp.  560  et  seq. 

3  Cf.  chap.  in. 

101 


§  23]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

transfer  of  title  and  the  creation  of  property  rights,  when  they 
should  have  made  the  publicity  of  these  acts  the  condition  of  their 
validity. 

§  24.  The  Declaration  of  Will.  —  The  whole  of  modern  law 
revolts  against  the  principle  so  understood.  With  regard  to  the 
transfer  of  title  and  the  creation  of  property  rights,  everywhere  we 
see  growing  up  a  well-thought-out  system  which  imparts  a  truly 
social  character  to  these  acts,  as  I  will  explain  later.  And  further, 
modern  law  tends  more  and  more  to  admit  that,  as  a  general  rule, 
what  produces  a  legal  result  is  not  and  cannot  be  the  inward  act 
of  will  (volition,  as  the  psychologists  say),  but  rather  the  external 
manifestation  of  the  will,  the  declaration  of  the  will,  or  "  Willens- 
erklarung  "  according  to  the  German  expression. 

This  is  another  direct  consequence  of  the  socialization  of  Law. 
So  long  as  a  specific  rule  of  law  represented  merely  a  protection 
accorded  the  subject  of  will  (and  each  human  individual  is  such), 
the  juridical  act  was  essentially  the  inward  act  of  will  of  the  bearer 
or  subject  of  right ;  it  was  this  inward  act  of  will  that  the  law  pro- 
tected. But  once  it  is  admitted  that  a  juridical  state  of  facts  is 
negligible  and  undeserving  of  protection  save  when  it  conforms  to  a 
social  purpose,  and  that  every  juridical  state  of  facts  has  force  and 
effect  only  in  the  measure  that  it  possesses  a  social  reason,  then 
such  a  state  of  facts  can  arise  only  out  of  an  act  which  has  itself  a 
social  character.  Under  this  reasoning  it  can  result  only  from  an 
outward  act  of  the  will,  because  so  long  as  the  will  is  not  mani- 
fested externally  it  is  purely  individualistic  in  its  nature.  The 
act  of  will  becomes  a  social  act  only  through  its  manifestation. 

That  is  why  modern  law  tends  more  and  more  to  protect  only  the 
declared  will.  But  I  wish  to  emphasize  that  I  do  not  say,  as  some 
do,  that  modern  law  is  returning  to  the  formalism  of  primitive 
Roman  law.  I  make  no  such  claim.  Modern  law  does  not  insist 
that  the  will  be  manifested  in  a  determinate  form,  oral  or  written. 
It  requires  merely  that  it  be  expressed ;  the  form  is  immaterial. 
It  cannot  protect  simply  the  inward  act  of  will. 

But,  up  to  the  present  time  at  least,  it  would  not  be  exact  to  say 
that  modern  law  tends  to  require  merely  the  declaration,  without 
requiring  a  real  intention  to  support  it.  An  actuating  will  is 
necessary ;  there  can  be  no  juridical  act  unless  there  is  a  real  inten- 
tion. But  it  is  also  true  that  sometimes  this  will  is  implied,  and 
that  the  legal  consequences  seem  to  attach  to  the  outward  act 
rather  than  to  the  inward  will. 

Let  us  consider  now  some  of  the  more  important  practical 

102 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§  24 

effects  of  this  new  conception  which  springs  directly  from  the  social- 
ization of  modern  law. 

Suppose  that  in  fact  the  real  will  does  not  agree  with  the  de- 
clared will ;  imagine  a  greater  or  less  divergence  between  the  two  ; 
the  question  is,  can  the  part  over  which  agreement  is  absent  pro- 
duce the  legal  result  which  was  in  reality  desired,  and  not  that 
which  it  declared  it  desired  ?  In  the  traditional  and  classic  system 
such  proof  is  allowable.  Article  1156  of  the  Napoleonic  Code  so 
decides  when  it  says  :  "In  construing  contracts  the  mutual  inten- 
tion of  the  parties  shall  be  ascertained  rather  than  the  literal  sense 
of  the  terms."  In  the  new  system,  that  of  the  declared  will,  a 
party  may  not  be  heard  to  prove  this.  He  may,  indeed,  prove 
that  there  was  no  act  of  will  at  all ;  though  certain  decisions  of  the 
French  Courts  seem  even  to  refuse  this.  But  he  may  not  secure  the 
recognition  of  a  result  which  he  has  not  manifested  that  he  in- 
tended, though  he  desired  it  in  reality. 

French  Courts,  both  civil  and  administrative,  have  already 
made  some  noteworthy  applications  of  this  doctrine.  The  German 
Civil  Code  x  seems  to  go  even  further.  It  appears  to  provide  that 
a  declarant  is  not  allowed  to  prove  that  he  did  not  in  reality  intend 
certain  things  which  he  included  in  his  declaration,  and  that  as  a 
general  rule  all  the  terms  of  the  declaration  must  be  given  effect. 
This  would  seem  to  result  from  Article  116  :  "A  declaration  of  in- 
tention is  not  void  by  reason  of  the  fact  that  the  declarant  has 
made  a  secret  reservation  of  not  willing  the  matter  declared.  The 
declaration  is  void  if  made  to  a  person  who  is  aware  of  the  reserva- 
tion." Numerous  difficulties  attach  to  the  interpretation  of  the 
Article  in  its  more  minute  applications,  and  into  these  I  cannot 
enter  here.2  It  seems,  however,  that  the  solution  offered  by  the 
German  Civil  Code  presents  many  great  advantages  in  practice.3 

1  In  force  throughout  the  German  Empire  since  1900. 

2  Cf.  the  admirable  work  of  Saleilles :  "De  la  declaration  de  volonte  ; 
Contribution  a  l'etude  de  l'acte  juridique  dans  le  code  civil  allemand" 
(1902). 

3  Meynial,  in  an  article  published  in  the  "Revue  trimestrielle  de  droit 
civil"  (1902),  pp.  545  et  seq.,  speaking  of  Saleilles'  work,  supra,  note  2, 
summarizes  with  great  clearness  and  exactness  what  seems  to  be  the  real 
point  of  view  of  the  German  Civil  Code.  He  says  (p.  550) :  "According 
to  it  (German  Civil  Code)  the  basis  of  the  juridical  act,  what  presides  at  its 
inception  and  fixes  its  import,  is  the  declaration  of  the  actor  and  not  the 
will  which  that  declaration  is  supposed  to  translate.  No  account  is  taken 
of  the  will  until  it  is  translated  outwardly  in  the  f  orm  of  a  declaration ; 
from  this  declaration  it  is  logical  always  to  infer  the  existence  of  the  will 
and  to  give  it  the  same  effect  whether  the  will  which  it  is  supposed  to 
interpret  really  exists  or  not."  As  to  some  of  the  practical  consequences 
seeming  to  flow  from  this  conception,  Meynial  says  (ibid.,  p.  555)  :  "In 
the  first  place,  the  substitution  of  the  declaration  for  the  inward  will  as 

103 


§  25]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

§  25.  Object  and  Aim  of  the  Juridical  Act.  —  Whatever  may  be 
the  case,  I  maintain  my  first  point,  that,  as  modern  law  becomes 
socialized,  it  is  not  the  inward  will  but  the  declared  will  that  is 
protected,  because  that  alone  is  an  act  affecting  society. 

the  basis  for  the  juridical  act  affects  the  interpretation,  to  be  given  that 
act.  The  judge  must  endeavor  to  discover  not  what  the  declarant  in- 
tended in  his  inner  consciousness,  but  what  his  declaration  justifies  our 
believing  that  he  intended.  Secondly,  under  the  theory  of  declared 
intention,  the  classical  doctrine  of  mistake  and  its  effect  upon  contracts 
disappears.  Doubtless  mistake  may  have  consequences,  but  they  will  be 
given  different  recognition."  Dereux  says:  "In  the  declaration  there  is 
no  longer  room  for  distinguishing  cause,  essence,  and  motive ;  all  such 
distinctions  reposing  upon  a  subtle  analysis  of  will  are  suppressed;  from 
the  moment  that  a  mistake  is  over  a  declared  fact  and  is  sufficiently 
material  to  have  determined  the  consent  of  a  party,  the  act  is  voidable." 
Cf.  "De  ^interpretation  des  actes  juridiques  prives",  p.  239.  Saleilles 
says:  "The  criterion  which  is  to  guide  us  in  determining  whether  a 
mistake  is  to  be  taken  into  consideration  is  not  the  inward  will  which 
precedes  the  declaration,  but  the  exterior  and  sensible  act  of  declaration. 
In  this  way,  the  clue  to  the  gravity  of  the  mistake  is  withdrawn  from  the 
obscure  realm  of  the  inner  thought  and  brought  into  the  open  world  of 
the  senses."  Cf.  "De  la  declaration  de  volonte  etc.",  p.  19;  cf.  also 
Leonhard,  "Der  allgemeine  Thcil  des  Burgerliches  Gesetzbuchs",  pp. 
469  et  seq.  These  citations  show  that,  while  the  legal  theory  of  the 
declaration  of  will  is  not  fully  developed,  yet  its  elements  are  well  defined. 
They  show,  too,  that  its  consequences  lead  away  from  the  classical  con- 
ception of  the  autonomy  of  the  will.  Meynial  said  with  truth:  "What 
predominates  in  all  the  efforts  to  which  I  have  alluded  is  that  their  aim 
and  result  is  to  restrain  to  a  greater  or  less  degree  the  autonomy  of  the 
individual.  Once  upon  a  time  the  individual  was  everything  in  a  con- 
tract ;  it  was  the  individual  who  provided.  Now,  on  the  contrary,  the 
tendency  is  to  show  him  powerless.  .  .  ."  Ibid.,  p.  556;  cf.  Fortier, 
"Des  pouvoirs  du  juge  en  matiere  de  contrats  d'adhesion"  (1909,  thesis, 
University  of  Dijon). 

I  said  (p.  56)  that  certain  decisions  of  the  French  Courts  seem  to  have 
relied  directly  upon  the  theory  of  the  declared  will.  Dereux  {ibid.,  p.  241), 
who  has  made  a  long  and  remarkable  study  of  all  these  questions,  says 
that  numerous  decisions  of  the  French  Courts  may  be  cited  as  anticipating 
the  principle  of  the  new  German  Code.  For  example,  the  Court  of  Pau 
held  that  mistake  over  incidental  elements  could  not  be  considered  unless 
the  parties  had  expressly  conditioned  the  agreement  upon  the  existence 
of  these  elements.  In  the  long  passages  {ibid.,  pp.  152  et  seq.),  devoted 
to  the  interpretation  of  those  acts  constituting  conduct  indicative  of 
assent  and  equivalent  to  a  contract  ("contrats  d'adhesion"),  he  cites 
numerous  decisions  relating  to  insurance  policies  where  the  assured  is 
recognized  as  bound  by  an  acceptance  "in  toto"  of  the  terms  of  the  policy 
and  may  not  be  heard  to  prove  that  he  did  not  intend  to  accept  certain 
clauses.  Is  this  not  a  recognition  that  the  declared  will  binds  the  party 
even  when  the  declaration  does  not  correspond  exactly  to  his  inward 
intention?  There  are  other  decisions,  it  is  true,  which  proceed  upon  a 
different  interpretation  of  insurance  policies. 

The  decisions  of  the  Council  of  State  illustrate  an  interesting  applica- 
tion of  the  doctrine  of  the  declared  will.  This  administrative  Court  has 
held  thai  ;m  action  to  set  aside  a  public  administrative  act  is  well  founded 
when  the  plaintiff  establishes  that  the  agent,  though  acting  within  the 
scope  of  his  duties,  was  actuated  by  a  purpose  foreign  to  the  intention 
of  the  legislator  in  conferring  the  particular  power  upon  the  agent.  Such 
an  act  is  known  as  "abuse  of  power"  (or  "ultra  vires").  But  the  Council 
of  State  (which  has  jurisdiction  over  such  cases)  has  held  that  it  may  not 
scrutinize  the  inner  motive  of   the  public  agent  who  performed  the  act, 

104 


Chap.  1 1  Ij   CHANGES  IN  CONTRACT,  PROPERTY,  ETC.        [§  25 

When  summarizing  the  individualistic  doctrine  of  the  autonomy 
of  the  will,  I  stated  as  my  third  proposition,  that  the  act  of  will  is 
protected  upon  condition  that  its  "  object  "  is  lawful,  and  that  this 
condition  is  the  immediate  and  all-sufficient  test  of  the  law's  pro- 
tection to  the  act  of  will.  This  point  is  established  by  numerous 
provisions  of  the  Napoleonic  Code  and  the  Argentine  Civil  Code, 
notably  by  Article  6  of  the  Napoleonic  Code  and  Article  9  of  the 
Argentine  Civil  Code,  which  contain  the  fundamental  declarations 
regarding  the  autonomy  of  the  will.  And  I  may  add  Article  953 
of  the  Argentine  Civil  Code  :  "  The  object  of  juridical  acts  must  be 
something  proper  to  commerce  or  which  has  not  for  any  special 
reason  been  forbidden  to  be  the  object  of  juridical  acts,  or  some- 
thing which  is  not  impossible,  unlawful,  contrary  to  good  morals 
.  .  .  ,  or  prohibited  by  law.  ..."  The  negative  form  imparted 
to  this  text  clearly  shows  that  the  one  condition  necessary  for  an 
act  of  will  to  produce  an  effect  in  law  is  that  it  have  a  lawful  object. 

The  result  was  the  same  under  the  Napoleonic  Code.  Article 
1108,  it  is  true,  requires  besides  an  "  object",  that  "  the  '  cause  '  of 
the  obligation  be  lawful  ";  and  Articles  1131  to  1133  are  placed 
under  the  topic  "  Concerning  '  Cause.'  '  Article  1131  declares 
that  "  an  obligation  without  '  cause  '  or  founded  on  a  mistaken 
'  cause  '  or  an  unlawful  '  cause  '  can  have  no  effect."  For  a  cen- 
tury commentators  have  racked  their  brains  to  know  what  those 
who  drafted  the  Code  meant  by  the  term  "  cause."  Classical 
individualists,  like  Planiol,  declare  that  "  cause  "  and  "  object  " 
are  the  same.  For  example,  he  says  that  in  a  bilateral  contract 
such  as  sale,  the  thing  sold  and  the  price  are  respectively  the  "cause  " 
and  the  "  object  "  of  the  obligation  of  both  the  seller  and  of  the 
purchaser ;  so  in  a  contract  of  loan  the  "  cause  "  is  the  delivery 
by  the  lender  to  the  borrower  of  the  thing  loaned,  and  this  thing 
is  at  the  same  time  the  "  object  "  of  the  obligation  of  the  borrower ; 
so  also  in  acts  without  consideration  it  is  impossible  to  speak  of 
"  cause  "  at  all ;  and,  finally,  in  juridical  acts  the  "  object  "  alone 
is  to  be  considered.1 

and  that  proof  of  abuse  of  power  must  appear  from  documents  resulting 
from  the  administrative  act  itself.  That  is  to  say,  the  purpose  and  aim 
of  the  will  which  produces  a  legal  result  are  determined  solely  by  the  terms 
of  the  declared  will,  and  the  judge  may  only  consider  the  manifested  inten- 
tion of  the  administrative  officer.  Cf.  Hauriou  et  De  Bezine,  "De  la 
declaration  de  volonte  en  droit  administratif ",  appearing  in  "Revue 
trimestrielle  de  droit  civil"  (1903),  p.  543;  Jeze,  "Principes  generaux  du 
droit  administratif",  p.  61,  note  3;  Duguit,  "Traite  de  droit  constitution- 
al", Vol.  I,  pp.  221  et  seq. 

1  Planiol  writes  :  "The  theory  of  '  cause '  according  to  French  doctrine 
possesses  a  double  defect:    1.  It  is  untrue  in  at  least  two  cases  out  of 

105 


§  25]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

But  there  is  now  appearing,  to  the  astonishment  of  our  classical 
individualists,  a  body  of  case-law  in  which  a  new  element,  that  of 
purpose  and  its  social  value,  figures  in  the  foreground.  For  an  act 
of  will  to  produce  legalresult  it  is  still  necessary,  of  course,  that  it 
have  a  lawful  object.  But  that  is  not  enough ;  it  must  be  deter- 
mined by  a  certain  purpose,  which  must  be  one  of  social  solidarity, 
that  is  to  say,  a  purpose  possessing  social  value  according  to  the  ob- 
jective standard  of  social  value  prevailing  in  the  particular  country. 
This,  again,  is  a  clear  consequence  of  the  socialization  of  law. 

Here,  then,  we  find  a  new  element  influencing  and  profoundly 
transforming  historical  law.  It  was  the  eminent  jurist  Jhering 
who  first  showed  the  great  importance  of  social  purpose  in  law  in 
general  and  particularly  in  modern  law,  both  public  and  private.1 

three  ;  2.  It  is  useless."  Cf.  "  Droit  civil",  Vol.  II,  no.  1037.  The  justice 
of  the  criticism  is  hardly  doubtful.  Planiol  proves  it  very  clearly  in  a  few 
pages.  Laurent  had  anticipated  him  by  declaring  "that  the  doctrine  of  the 
Civil  Code  regarding 'cause'  is  not  juridical  .  .  .  ,  and  that  the  law  was 
wrong  in  distinguishing  'cause'  from  'object'  and  in  making  the  former  a 
fourth  requisite  for  the  validity  of  a  contract."  Cf.  "Droit  civil",  Vol.  XVI, 
no.  111.  These  ideas  have  been  worked  out  at  length  in  several  remarkable 
theses  submitted  for  the  degree  of  Master  of  Law,  notably  by  Artur  (Uni- 
versity of  Paris,  1878) ;  Brissaud  (University  of  Bordeaux,  1879) ;  Timbal 
(University  of  Toulouse,  1882) ;  Seferiades  (University  of  Paris,  1897). 

At  the  very  outset,  in  the  doctrine  of  "cause"  which  it  has  seemed  fit 
to  construct  upon  a  few  provisions  of  the  Napoleonic  Code,  there  is  a 
contradiction  in  the  Code  itself  that  destroys  the  whole  fabric.  Article 
1108  names  the  four  conditions  "essential  to  the  validity  of  a  contract" 
and  among  these  it  states  that  the  "cause  of  the  obligation  be  lawful." 
Thus  the  "cause"  of  obligation  is  made  an  essential  condition  of  the  con- 
tract. What  the  Code  is  really  talking  of,  then,  is  not  the  "cause"  of  the 
contract,  but  the  "cause"  of  the  obligation.  And  yet  this  "cause" 
which  is  declared  an  essential  element  of  the  obligation  (and  note  that 
an  obligation  may  spring  from  quite  other  sources  than  contract)  would 
be  made  an  element  in  the  formation  of  a  contract.  This  is  not  sound ; 
yet,  on  this  ground  the  battle  has  been  waged  for  over  a  century.  Clearly, 
we  can  not  speak  of  the  final  "cause"  but  only  of  the  immediate  "cause" 
of  an  obligation,  or,  more  exactly,  of  the  origin  of  the  obligation.  We  can 
only  predicate  final  "cause"  of  an  act  of  will.  Now  an  obligation  is  not 
an  act  of  will,  but  a  juridical  state  of  facts  produced  by  an  act  of  will  and 
having  a  certain  object,  namely  the  performance  of  something.  We  can 
only  speak,  then,  of  the  "object"  of  the  obligation.  But  the  declaration 
of  will  which  constitutes  the  juridical  act  is,  like  every  act  of  will,  necessa- 
rily determined  by  a  motive ;  and  this  actuating  motive  must  necessarily 
affect  the  force  and  consequences  of  the  declaration.  The  discussions  and 
controversies  of  jurists  will  change  nothing.  If  by  "cause"  we  mean  the 
motive;  determining  the  act  of  will,  then  there  is  such  a  thing  and  it  has 
legal  i  in  p< >rtance.  But  it  is  a  poor  term  and  productive  of  much  confusion. 
We  should  say  rather  that  the  end  or  the  determining  motive,  not  of  the 
obligation,  but  of  the  declared  will,  is  what  supports  the  juridical  act. 
This  is  certainly  what  the  French  Courts  consciously  or  unconsciously 
understand  by  "cause",  as  will  be  seen  by  the  citations  in  Baudry-La- 
cantinerie  and  Barde,  "Des  obligations"  (3d  ed.  1903),  pp.  332  et  seq. 

1  In  his  celebrated  work  "Der  Zweck  im  Recht"  (Purpose  in  Law),  Vol. 
I  [translated  as  "Law  as  a  Means  to  an  End",  in  the  Modern  Legal 
Philosophy  Series  (Boston,  1914)]. 

106 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§  25 

I  might  expand  at  length  the  part  which  purpose  plays  in  law  and 
more  particularly  in  juridical  act,  but  I  will  limit  myself  to  a  few 
observations  and  examples. 

What  is  the  difference  between  the  object  and  the  purpose  of  a 
juridical  act?  The  same  difference  as  exists  between  the  object 
and  the  purpose  of  an  act  of  will.  That  a  manifestation  of  the 
will  is  necessary,  does  not  mean  that  the  juridical  act  does  not  con- 
tain an  act  of  will.  The  object  of  the  act  of  will  or  of  the  juridical 
act  is  what  one  wishes.  I  wish,  for  example,  that  a  certain  party 
become  my  promisor  with  respect  to  a  certain  thing  or  act.  That 
thing  or  act  is  the  object  of  my  will.  The  purpose,  on  the  other 
hand,  is  the  reason  why  I  wish :  the  reason  why  I  will  that  the 
particular  obligation  come  into  existence,  that  the  particular  legal 
state  of  facts  arise,  or  that  the  particular  party  become  my  prom- 
isor with  respect  to  the  thing  or  act. 

Whether  or  not  we  admit  the  freedom  of  the  will  (and  that  is  a 
metaphysical  problem  which  I  shall  carefully  avoid),  there  is  a 
determining  motive  back  of  every  act  of  will,  and  that  determining 
motive  is  precisely  the  purpose  of  the  juridical  act  which  constitutes 
the  act  of  will  under  consideration.  In  distinguishing  between 
the  purpose  and  the  object  Jhering  gives  a  simple  and  striking 
example.  I  desire,  he  says,  to  drink  a  glass  of  wine.  My  object 
is  to  drink  a  glass  of  wine ;  my  purpose  is  to  become  intoxicated  or 
to  satisfy  my  thirst.  Now  obviously  the  act  of  will,  which  has  the 
same  object  in  each  case,  has  a  very  different  value  according  as 
it  is  determined  by  one  or  the  other  of  these  two  purposes  men- 
tioned. 

It  would  be  a  simple  matter  to  show  by  numerous  cases  how 
modern  courts,  and  particularly  those  of  France,  contrary  to  the 
classical  doctrine,  are  giving  more  and  more  weight  to  the  element 
of  purpose  in  their  appreciation  of  juridical  acts.  I  will  review  a 
few  characteristic  examples. 

Let  us  take  that  numerous  class  of  contracts  for  the  loan  of  money. 
According  to  the  traditional  doctrine,  if  the  money  has  been  paid 
by  the  loaner  to  the  borrower  the  latter  is  bound.  There  is  a 
lawful  "  object  ",  and  if  we  adhere  to  the  Napoleonic  Code  and 
search  for  a  "  cause",  we  find  that  it  exists  from  the  moment  of  the 
transfer  of  possession  of  the  money  loaned.  The  contract  is 
formed  over  the  thing,  and  it  is  valid  regardless  of  the  purpose  on  the 
minds  of  the  parties  when  they  made  the  loan.  This  was  the  doc- 
trine taught  without  discussion  in  the  past.  To-day  the  Courts 
frequently  declare  that  if  the  loan  was  made  with  a  purpose  con- 

107 


§  25]  PART   I      READJUSTMENT    OF   LAW  [Chap.    Ill 

trary  to  public  order  or  good  morals,  for  example  to  run  a  bawdy 
house,  it  would  have  no  juridical  effect.1 

Let  us  take  another  example.  Article  1965  of  the  Napoleonic 
Code  declares  that :  "  No  action  lies  for  a  gambling  debt  or  for  the 
payment  of  a  wager."  2  But  this  rule  clearly  applies  by  its  terms 
only  to  the  gambling  debt  itself,  and  it  was  formerly  the  generally 
accepted  view  that  the  loan  contracted  to  procure  money  for 
gambling  purposes  was  perfectly  valid  and  productive  of  legal  re- 
sult. To-day,  on  the  contrary,  it  is  the  constant  rule  of  the  Courts 
that  such  a  loan,  made  to  procure  to  oneself  or  to  others  funds  for 
gambling  purposes,  is  invalid  under  the  civil  law.  It  has  even  been 
held  that  proof  of  such  intention  was  established  by  the  fact  that 
the  loan  was  made  in  a  gambling  resort  or  in  the  neighborhood  of 
such  a  place,  when,  in  the  instance,  it  was  made  by  those  whose 
profession  was  known  to  be  loaning  money  to  gamblers.3 

A  third  example  is  Article  900  of  the  Napoleonic  Code,  on  the 
law  of  wills;  and  it  has  given  rise  to  a  great  deal  of  controversy ;  I 

1  This  was  very  clearly  held  by  the  French  Court  of  Cassation  in  a  deci- 
sion of  April  1,  1895,  of  which  the  following  is  the  synopsis :  "The  obliga- 
tion contracted  by  the  borrower  of  a  sum  of  money  is  null  where  the 
'cause'  (determining  motive)  of  the  loan  was  in  the  intention  of  both 
parties  the  acquisition  of  a  bawdy  house."  Cf.  Sirey,  189G,  I.  p.  289. 
Appert,  the  reporter  of  the  case,  in  a  critical  note,  shows  his  astonishment 
at  the  decision  ;  he  does  not  hesitate  to  declare  that  the  Court  of  Cassation 
was  wrong.  Cf.  ibid.,  note,  p.  289,  col.  1.  He  does  not  perceive  that  the 
Court  of  Cassation,  on  the  contrary,  very  rightly  gave  to  the  purpose,  to 
the  determining  motive,  the  value  which  it  should  have  in  every  juridical 
act  under  the  modern  conception  of  law.  Furthermore,  since  1895  the 
Court  of  Cassation  has  several  times  affirmed  this  decision  upon  similar 
grounds.  Notably  by  a  decision  of  July  17,  1905,  it  declared  that  the 
parties  to  an  immoral  and  unlawful  contract  (in  this  case  the  transfer  of  a 
bawdy  house),  to  execute  which  promissory  notes  had  been  signed  and 
negotiated,  had  no  standing  in  an  action  either  for  the  payment  of  the 
stipulated  price  or  for  the  recovery  of  what  had  been  paid.  Cf.  Sirey, 
1909,  I,  p.  188.  A  similar  decision  is  that  of  the  German  Imperial  Court 
of  Jan.  21,  1903  :  "A  contract  involving  a  loan  of  money  and  a  sale  of 
furniture  for  the  purpose  of  opening  and  running  a  bawdy  house  is  void." 
Cf.  Sirey,  1905,  IV,  p.  15. 

2  [Article  2055  of  the  Argentine  Civil  Code  may  be  said  to  correspond  to 
Article  1965  of  the  Napoleonic  Code.  It  makes  exceptions  to  the  general 
prohibition  of  gaming  contracts,  in  favor  of  wagers  in  certain  classes  of 
sports.  —  Transl.] 

3  The  following  is  the  synopsis  of  a  case  decided  July  4,  1892,  in  which 
the  Court  of  Cassation  very  clearly  laid  down  this  rule :  "An  action  may 
not  be  granted  the  party  who,  by  loaning  to  a  gambler,  during  the  course  of 
a  game,  funds  intended  for  gambling  and  which  served  to  assist  the  gam- 
bler, knowingly  and  intentionally  aided  and  abetted  the  performance  of 
an  unlawful  act  which  the  law  refuses  to  recognize;"  cf.  Sirey,  1892,  I, 
p.  513,  opinion  of  Judge  Lepelletier.  The  classical  individualists  naturally 
disapprove  of  the  decision.  Baudry-Lacautinerie,  in  particular,  says: 
"  Is  a,  loan  valid  when  made  to  a  gambler  to  enable  him  to  play?  It  has 
1'ii!  held  that  such  a  loan  is  void  as  having  an  unlawful  'cause.'  We 
have  already  answered  this  argument  when  we  distinguished  between 

108 


Chap.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  25 

have  been  unable  to  find  a  corresponding  provision  in  the  Argentine 
Code.  The  French  text  says  :  " In  any  transfer  of  property  'inter 
vivos  '  or  by  will  conditions  imposed  which  are  impossible  of  per- 
formance or  contrary  to  law  or  good  morals  shall  be  regarded  as 
not  written."  This  text  makes  no  distinction  between  a  condition 
and  a  lien,  a  distinction  which  Article  558  of  the  Argentine  Civil 
Code  brings  out  very  clearly.  In  the  case  of  devises  accompanied 
by  a  clause  importing  an  unlawful  or  immoral  object,  the  French 
Courts  have  for  a  long  while  not  hesitated  under  Article  900  to 
validate  the  legacy  by  eliminating  the  unlawful  or  immoral 
"  cause."  For  example,  legacies  are  quite  common  of  a  sum  of 
money  to  the  legatee  upon  condition  that  he  does  not  marry  or 
that  he  does  not  remarry.  These  were  held  to  be  absolute  gifts. 
To-day  a  new  and  strong  line  of  cases  have  been  decided  under 
which  the  Court  must  inquire  in  each  case  into  the  purpose  or  de- 
termining motive  of  the  testator.  If,  for  example,  his  intention  in 
making  the  gift  was  to  prevent  a  certain  person  from  marrying  or 
remarrying,  his  act  was  actuated  by  an  unlawful  object,  perhaps 
even  immoral,  and  in  any  case  anti-social ;  consequently  his  act  is 
declared  by  the  Court  to  be  without  effect.1 

I  regret  that  I  cannot  here  work  out  in  detail  the  application 
which  the  French  Council  of  State  has  made  of  the  idea  of  purpose 
in  an  admirable  line  of  decisions  upon  the  question  of  "  abuse  of 
power  "  ("  ultra  vires  ").  This  Court  has  upon  the  petition  of 
any  interested  party  declared  null  any  public  administrative  act 
by  an  administrative  authority,  from  the  President  of  the  Republic 
down  to  the  humblest  agent,  whenever  the  act,  though  intending 
something  within  the  jurisdiction  of  the  particular  officer,  is  deter- 
mined nevertheless  by  another  purpose  than  that  contemplated 

'cause'  and  'motive.'  "  Cf.  "Droit civil  "  (10th  ed.,  1909),  vol.  II,  p.  735. 
In  spite  of  these  criticisms  the  Court  of  Cassation  has  maintained  its  rule. 
Cf.  Decision  of  July  31,  1907,  affirming  a  decision  of  the  Court  of  Appeals 
of  Bordeaux,  reported  in  Sirey,  1911,  I,  p.  622. 

1  To-day  the  Court  of  Cassation  and  the  Courts  of  Appeal  are  unvarying 
in  this  rule,  which  may  be  considered,  therefore,  as  finally  established. 
It  declares  void  any  legacy  or  gift  subject  to  a  condition  that  is  impossible, 
immoral,  or  unlawful,  whenever  such  condition  must  be  taken  as  the  moving 
and  determining  "cause"  of  the  gift.  It  would  be  better  to  say  "deter- 
mining motive"  ;  but  there  is  no  doubt  about  the  meaning.  Cf.  notably 
Court  of  Cassation,  May  26,  1894,  reported  in  Sirey,  1896,  I,  p.  i29  ;  May 

8,  1901,  Sirey,  1902,  I,  p.  8;    June  17,  1905,  Sirey,  1906,  I,  p.  174;  May 

9,  1905,  Sirey,  1907,  I,  p.  335.  The  typical  classical  individualist,  such  as 
Baudry-Lacanlinerie,  naturally  criticizes  this  rule  too.  "We  have  seen," 
he  says,  "that  a  gift  can  only  have  as  'cause'  the  desire  to  please  the  donee, 
that  is  to  say,  a  generous  thought ;  it  follows  that  a  gift  can  never  have 
an  unlawful  'cause.'  We  cannot  agree,  at  any  rate,  to  the  reasoning  of  the 
Court."     Cf.  "Droit  civil"  (10th  ed.  1910),  Vol.  Ill,  p.  555. 

109 


§  25]  PART   I      READJUSTMENT   OF   LAW  [CHAP.    Ill 

by  the  law  when  it  conferred  the  jurisdiction.1  So  the  French 
Council  of  State  has  finally  suppressed  that  entire  class  of  acts 
once  called  discretionary,  the  existence  of  which  text-writers  on 
administrative  law  held  as  a  sort  of  article  of  faith. 

§  26.  Legal  States  of  Facts  not  constituting  Relations  between 
Two  Subjects.  —  My  fourth  and  last  proposition,  derived  from  the 
principle  of  the  autonomy  of  the  will,  was  that  "  every  juridical 
state  of  facts  may  be  traced  to  relations  between  two  subjects  of 
right,  of  whom  one  is  the  passive  subject  and  the  other  the  active 
subject."  If  there  is  a  tenet  in  the  historical  individualistic 
doctrine,  it  is  certainly  this  one.  Long  ago  Roman  jurists  had 
spoken  of  the  "vinculum  juris" ;  and  now  the  latest  writers,2  still 
dominated  by  the  individualistic  doctrine,  declare  that,  "  While 
it  is  true  that  those  fundamental  conceptions  upon  which  law  as 
a  science  operates,  as  for  example  the  conceptions  of  subjective 
right,  of  an  active  or  passive  subject  or  right,  and  of  an  object  of 
right,  have  not  in  themselves  any  reality,  still  we  must  admit  that 
in  practice  they  are  indispensable." 

I  have  shown  that  under  the  doctrine  of  the  autonomy  of  the 
will,  which  is  inferred  under  the  individualistic  system,  a  juridical 
state  of  facts  can  in  reality  be  conceived  only  as  a  relationship 
between  two  subjects.  Article  944  of  the  Argentine  Civil  Code 
declares  this  expressly,  as  we  have  already  seen.  No  doubt  some 
individualists  have  maintained  that  the  legal  status  of  the  owner, 
or,  to  use  the  more  general  term,  the  legal  status  of  the  person 
entitled  to  a  right  "in  rem",  forms  an  exception.  It  is  true  they 
say  that  a  right  "  in  rem  "  does  not  imply  a  relationship  between 
two  subjects  of  right.  A  party  exercises  such  a  right  directly  over 
the  thing  without  there  being  any  passive  subject.  But  Planiol, 
whose  very  remarkable  work  was  a  desperate  effort  to  save  the  in- 
dividualistic system  from  ruin,  did  not  hesitate  to  show  that  this 
was  in  absolute  contradiction  with  the  fundamental  principle  of  the 
system,  and  that  the  legal  status  of  the  owner  or  title  holder  of  a 
right  "in  rem"  must,  upon  analysis,  be  regarded  as  a  relationship 
between  an  active  subject  who  is  entitled  to  the  right  and  a  passive 
subject  who  is,  in  this  case,  every  other  person  who  opposes  the 
exercise  of  that  right.3 

1  Cf.  Duguit,  "Traite  de  droit  constitutionnel",  vol.  I,  p.  224,  and  the 
decisions  and  bibliography  there  cited. 

2  Michoud,  i'or  example  in  "La  theorie  de  la  personnalite  morale" 
(1906),  Part  1,  p.  10. 

3  Planiol,  "Droit civil",  Vol.  I,  nos.  762  and  763.  But  contra,  Capitant, 
"Introduction  a  l'etude  du  droit  civil"  (1898),  pp.  39  et  seq. 

110 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,   ETC.  [§  27 

I  recognize  quite  well  that  often,  indeed  generally,  in  practice, 
the  juridical  state  of  facts  represents  a  relation  between  two 
persons,  one  of  whom  is  bound  to  perform  a  positive  or  negative 
act,  and  the  other  of  whom  may  require  such  performance.  But 
in  contemporary  civilization,  with  its  social  tendencies,  this  is  not 
essential.  Sometimes  states  of  facts  exist  requiring  recognition 
and  legal  protection,  although  there  is  no  relation  between  two 
subjects,  and  although  there  appears  to  be,  and  indeed,  can  be 
only  an  obligation  imposed  upon  a  will,  without  the  possibility  of 
any  reciprocal  right.  Such  a  state  of  facts  receives  legal  sanction 
because,  under  the  hypothesis,  there  is  an  act  of  will  moved  by  a 
purpose  in  harmony  with  social  aims,  and  because  social  solidarity 
has  a  direct  interest  in  the  act.  "  Briefly,  a  state  of  facts  produc- 
tive of  legal  result  is  not  a  relation  between  two  subjects ;  there  is 
no  need  to  search  for  the  two  factors  in  a  privity  that  does  not  exist, 
but  rather  to  inquire  whether  or  not  there  is  an  act  of  will  moved 
by  a  purpose  in  harmony  with  a  specific  rule  of  law."  * 

§  27.  Private  Foundations  created  by  Testament.  —  What  I 
have  just  said  is  no  mere  hypothesis.  It  is  a  reality  observable 
in  many  parts  of  the  law,  notably  in  the  law  of  Germany  and  the 
decisions  of  the  French  Courts  relative  to  private  funds  created  by 
testamentary  devise.  This  is  a  class  of  cases  that  is  becoming  more 
and  more  numerous. 

Let  me  take  the  simplest  example.  I  bequeath  a  sum  of  money 
for  the  establishment  of  a  hospital,  or  (as  in  the  will  of  the  Gon- 
court  brothers,  which  a  few  years  ago  caused  so  much  comment  in 
France)  I  bequeath  a  certain  sum  to  create  an  Academy  of  Belles- 
Lcttres.  There  is  no  doubt,  according  to  the  individualistic 
doctrine,  that  such  a  devise  is  void.  Classical  authors  like 
Baudry-Lacantinerie  do  not  even  trouble  to  argue  the  matter. 
The  gift  is  void,  first,  under  Section  2  of  Article  906  of  the  Napole- 
onic Code,  according  to  which,  for  a  bequest  to  be  valid,  the  bene- 
ficiary must  at  least  have  been  conceived  at  the  time  of  the  testa- 
tor's death.  Now  the  hospital  is  inexistent  as  a  person  at  the 
time  of  the  testator's  death ;  it  cannot  exist  until  it  has  been  given 
personality  by  the  Government,  and  that  necessarily  will  be  sub- 
sequent to  the  donor's  death.  Secondly,  the  bequest  is  void  be- 
cause it  was  impossible  for  a  legal  relationship  to  arise.  Every 
valid  legacy  gives  rise  to  a  legal  relationship  between  the  testator's 
heir,  on  the  one  part,  who  becomes  debtor  of  the  legacy,  and  the 
legatee  creditor  on  the  other  part.     In  the  case  considered  the 

1  Cf.  Duguit,  "L'etat,  le  droit  objeetif  et  la  loi  positive"  (1900),  p.  183. 

Ill 


§  27]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

passive  (obligor)  subject  is  clear,  namely,  the  heir ;  but  the  active 
(obligee)  subject  is  not  apparent ;   no  legatee  exists. 

Now  such  a  solution  of  the  problem  (which  many  individualists, 
nevertheless,  still  dare  to  defend)  is  inadmissible.  The  testator, 
in  the  examples  under  consideration  and  in  all  similar  ones,  pursues 
an  aim  in  the  highest  degree  in  harmony  with  social  solidarity ; 
his  act  of  will  must,  therefore,  be  protected  and  guaranteed  by 
society.  In  spite  of  the  outworn  rules  imposing  prohibitions,  in 
spite  of  narrow  and  antiquated  doctrines,  the  validity  of  such  a 
testamentary  disposition  must  be  recognized  and  sanctioned  at  all 
costs.  The  subtleties  of  the  conservative  lawyer  must  be  rendered 
ineffective  and  the  new  rule  established  in  spite  of  him.  It  is 
objected  :  this  is  to  create  rights  detached  from  subjects,  —  veri- 
table monstrosities.  My  reply  is  that  we  create  nothing  at  all ; 
this  is  a  rule  of  objective  law,  spontaneously  springing  into  exist- 
ence to  guarantee  an  act  of  will  having  a  social  value.  We  create 
no  right  detached  from  a  subject,  since  legal  protection  is  accorded 
without  conceding  the  notion  of  subjective  right  at  all,  without 
ever  pronouncing  such  a  word.  As  has  already  been  shown,  there 
exists  neither  subjective  right  nor  a  bearer  subject  of  right. 

This  solution  is  already  law  in  Germany.  By  Article  80  the 
German  Civil  Code  has  already  provided  that :  "  For  the  creation 
of  a  foundation  with  juristic  personality,  the  act  of  the  grantor  of 
the  foundation  must  be  ratified  by  the  State  within  whose  territory 
the  foundation  is  to  have  its  seat.  If  the  foundation  is  not  to  have 
its  seat  within  any  State,  the  ratification  of  the  Federal  Council  is 
necessary."  Thus  the  Code  recognizes,  or  rather  presupposes,  the 
validity  of  funds  created  by  will.  It  is  true,  that  the  personality 
of  the  fund  can  be  recognized  only  by  authority  of  the  Government, 
but  the  important  point  is  that  the  gift  is  valid ;  its  validity  is 
admitted  as  though  it  were  made  to  an  institution  existing  and 
possessing  legal  personality  at  the  time  of  the  testator's  death. 

§  28.  Decisions  of  the  Courts  on  this  Subject.  —  In  France  two 
very  interesting  lines  of  decisions  have  been  handed  down  in  this 
matter,  one  administrative,  and  the  other  judicial.  In  spite  of 
existing  laws  and  the  hostility  of  individualists,  the  Courts  have 
succeeded  in  validating  and  allowing,  without  restriction,  the  crea- 
tion of  private  funds.  I  can  but  very  briefly  note  here  the  case  of 
the  will  of  the  Goncourt  brothers,  which  was  declared  valid  by  the 
Tribunal  of  the  Seine  and  the  Court  of  Paris.  They  gave  their 
fortune  to  create  an  Academy  of  Belles-Lettres.  It  was  argued 
that  the  gift  was  void,  because  made  to  benefit  a  person  not  in 

112 


Chap.   Ill]      CHANGES  IN  CONTRACT,   property,  etc.  [§  28 

existence  at  the  time  of  the  testator's  death.  But  the  French 
Courts  were  not  embarrassed  by  so  obsolete  an  objection ;  they 
recognized  the  validity  of  the  gift,  and  to-day  the  Academy  exists 
and  performs  its  functions.1 

The  Court  of  Cassation  came  to  a  similar  conclusion  in  a  less 
celebrated  case.  It  even  went  farther,  since  the  opinion  implies 
that  the  heir  must  see  that  the  fund  is  put  to  its  destined  use,  even 
though  the  Government  does  not  intervene  to  confer  upon  it  a  legal 
personality.  This  decision  may  be  said  to  have  finally  fixed  the 
judicial  law  on  the  subject.2 

1  It  has  brought  to  light  some  of  our  now  most  distinguished  authors, 
notably  Claude  Farrere,  author  of  "Les  civilises"  and  "La  bataille." 

2  The  testament  of  Edmond  de  Goneourt,  which  was  declared  also  to 
express  the  wishes  of  his  brother  Jules,  appointed  Alphonse  Daudet  and 
Leon  Hennique  as  universal  legatees,  charging  them  to  sell  the  property 
and  use  the  proceeds  to  create  a  literary  society.  The  society  was  to  be 
composed  of  ten  members,  to  each  of  whom  was  to  be  given  an  annuity  of 
six  thousand  francs ;  a  prize  of  from  five  thousand  to  ten  thousand  francs 
was  directed  to  be  awarded  annually  for  a  literary  work.  The  legal  heirs 
claimed  that  the  gift  was  void  because,  even  with  the  appointing  inter- 
mediaries, the  real  legatee  still  was  a  person  not  in  existence.  The  Court 
of  Appeals  of  Paris,  affirming  a  judgment  of  the  Tribunal  of  the  Seine  of 
August  5,  1897,  held,  on  March  1,  1900:  "That  the  testamentary  devise 
of  Edmond  de  Goneourt  is  valid  both  in  substance  and  form."  The 
lower  Court  and  the  Court  of  Appeals  decided  that  no  one  had  been 
named  as  intermediary;  saying,  "That  a  bequest  by  the  appointment  of 
intermediaries  is  void  only  in  case  the  party  named  to  benefit  by  the 
testator's  generosity  is  without  capacity  or  unknown ;  that  in  the  case 
under  consideration  Alphonse  Daudet  and  Leon  Hennique  are  the  only 
legatees  named."  This  reasoning  of  the  Court,  however,  was  unsound; 
for  the  person  who  was  to  benefit  here  was  not  only  without  capacity 
but  did  not  exist.  That  person  was  the  Academy,  which  surely  did  not 
exist  when  the  testator  died.  Indeed,  the  Courts  added  :  "It  is  no  doubt 
true  that  the  testator's  desire  is  that  his  fortune  pass  to  the  associa- 
tion .  .  .  ;  that  this  association  having  no  existence  as  yet  at  his  death, 
is  without  capacity  in  the  sense  that  it  cannot  receive  from  him  ;  that  in 
case  it  should  come  to  be  born  in  a  legal  sense,  it  will  receive  the  property 
not  from  the  testator,  but  from  the  legatees  themselves."  Cf.  Sirey,  1905, 
Part  II,  p.  78.  In  reality  both  Courts  were  unconsciously  applying  the 
purpose  theory.  The  reasons  on  which  they  founded  their  opinion  were 
in  absolute  contradictiou  with  the  traditional  principles  of  the  Napoleonic 
Code. 

Two  years  later  the  Court  of  Cassation  was  to  go  still  farther.  In 
1900  the  Court  of  Appeals  of  Paris  had  declared  that  the  Goneourt  Acad- 
emy, a  certain  foundation  established  by  devise,  could  not  organize  and 
act  without  first  receiving  a  State  permit  declaring  it  to  be  of  "public 
utility  "  and  granting  personality  ;  the  Court  adding  that  it  did  not  touch 
the  question  of  the  validity  of  the  gift.  But  in  1902  the  Court  of  Cass;it  ion 
went  so  far  as  to  admit  that  a  charitable  institution  founded  by  a  testator 
could  perform  its  functions  as  a  private  institution  without  receiving  a 
permit  as  of  "  public  utility."  A  certain  Graule,  a  retired  citizen  of  Fine- 
stret,  in  the  Department  of  the  Eastern  Pyrenees,  died  leaving  a  will  by 
which  he  clmrged  his  universal  legatees  with  the  foundation  of  an  asylum 
for  the  old  and  poor  in  Finestret;  he  provided  for  the  organization  of  the 
Asylum  so  founded.  His  legal  heirs  attacked  the  gift  on  the  grounds  that 
it  had  been  made  to  an  uncertain  person  through  the  appointment  of 
intermediate  agents.     The  Court  of  Appeal  of  Montpellier  first,  and  later 

113 


§  29]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

§  29.  Changes  in  the  Theory  of  Contract.  —  We  proceed  now  to 
notice  the  changes  in  the  conception  of  Contract. 

The  position  which  the  contract  holds  in  all  the  individualistic 
codes  is  well  known,  as  also  the  place,  important  still,  I  freely  ad- 
mit, which  in  point  of  fact  it  holds  in  the  relations  of  individuals, 
groups,  and  nations.  But  in  this  field,  too,  a  profound  transforma- 
tion of  the  same  nature  as  that  which  we  have  all  along  been  exam- 
ining, derived  from  the  same  principle  and  developing  in  the  same 
direction,  is  manifesting  itself.  The  general  rule  that  only  contract 
can  give  rise  to  a  state  of  facts  productive  of  legal  result  is  no  longer 
true.  Alongside  the  contract  new  classes  of  juridical  acts  are 
making  their  appearance  which  the  individualists  would  wrongly 
include  by  any  means  in  their  power  within  the  old  category  of  the 
contract,  but  which  are  really  acts  of  quite  a  different  sort,  uni- 
lateral acts  perhaps. 

§  30.  The  Individualistic  Conception  of  Contract.  —  It  was 
logical  under  the  individualistic  system  to  hold  that  contract  alone 
could  create  a  state  of  facts  productive  of  legal  result.  If  the  legal 
status  or  sphere  of  action  of  each  individual  is  based  upon  and 
measured  by  the  will  of  that  individual,  and  if  every  state  of  facts 

the  Court  of  Cassation,  recognized  the  legality  and  the  validity  of  this 
fund.  The  arguments  in  support  of  it  are  not  very  sound,  because  the 
Court  of  Cassation  did  not  dare  to  reject  all  the  old  conceptions  and  face 
the  reality.  I  note,  however,  the  following :  "...  it  cannot  be  held  that 
the  uses  expressed  in  the  testator's  will  and  the  provisions  above  mentioned 
constitute  a  mortmain  prohibited  by  law,  since  they  simply  propose  to 
establish  a  work  of  charity,  in  itself  lawful  and  susceptible  of  becoming 
an  establishment  of  'public  utility ',  but  which,  so  long  as  it  is  not  so 
recognized,  will  continue  to  exist  as  a  private  institution  under  the  general 
law."  Sirey,  1905,  I,  p.  137,  and  the  interesting  conclusions  of  Attorney 
General  Baudoin  with  the  note  by  Levy-Ullman.  This  decision  is  un- 
doubtedly of  great  importance,  for  it  not  only  recognizes  the  validity  of 
private  foundations  created  by  will,  but  it  also  decides  that,  even  while 
it  is  not  recognized  as  of  "public  utility  ",  "  the  work  of  charity  of  itseli 
la vful  will  subsist  as  a  private  institution."  Now,  in  that  case  who  will 
have  title  to  property  devoted  to  the  work  of  charity  ?  The  truth  is  that 
the  Courts  have  been  forced  to  sanction  and  protect  a  gift  made  with  a 
lawful  purpose,  without  being  able,  try  as  they  may,  to  find  a  subject  of 
right. 

As  to  foundations,  cf.  especially  Geouffre  de  Lapradclle,  "Theorie  et 
pratique  des  fondations  perpetuelles "  (1895);  Levy-Ullman  and  Grune- 
baum-Ballin,  "Essaisur  les  fondations  par  testament ",  published  in  the 
"Revile  trimestrielle  de  droit  civil"  (1904),  pp.  253  et  seq. ;  Coquet,  "Les 
fondations  privees"  (1908)  ;  Saleilles,  Report  presented  to  the  Commis- 
sion appointed  by  the  "Societe  d'etudes  legislatives"  for  the  study  of  the 
subject  of  foundations  and  published  in  the  "Bulletin  de  la  societe" 
(1908),  p.  467 ;  Larnaude,  Report  upon  foundations  presented  to  the 
General  Meeting  of  the  "Societe  d'etudes  legislatives"  and  published  in 
the  "Bulletin  de  la  societe"  (1909),  p.  26;  the  full  discussions  in  the 
different  meetings  of  the  society,  ibid.,  pp.  64,  93,  124,  237,  285,  311  and 
the  different  reports  made  to  the  Society,  pp.  75,  82,  161,  172,  179,  184, 
188,  267. 

114 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§  31 

productive  of  legal  result  is  a  relation  between  two  individuals 
one  of  whom  is  the  active  subject  and  the  other  the  passive  sub- 
ject, it  follows  evidently  that  the  meeting  of  their  two  wills  is 
required  to  modify  the  legal  sphere  of  action  of  one  by  increasing 
it  or  of  the  other  by  decreasing  it.  In  a  word,  as  every  state  of 
facts  productive  of  legal  result  is  a  relation  between  two  persons, 
it  can  arise  only  by  a  privity  between  two  wills ;  as  a  state  of  facts 
of  legal  consequences  constitutes  a  chain  binding  two  persons,  it 
necessarily  represents  a  chain  between  two  individual  wills. 

This  principle  stands  out  by  very  clear  implication  in  the  Na- 
poleonic Code  and  all  the  codes  based  upon  it.  It  came  down  from 
the  Roman  law,  and  has  been  constantly  affirmed  by  all  jurists  as 
an  unassailable  doctrine.  Exception  was  made  for  acts  of  de- 
cedents ;  but  even  in  this  case  the  heir's  acceptance  of  the  estate 
was  needed  to  bind  him.  In  acts  "  inter  vivos  "  only  the  rarest 
exceptions  were  conceded  ;  even  in  these  it  was  impossible  to  deny 
the  existence  of  an  obligation ;  but,  dominated  by  the  contractual 
doctrine,  the  obligation  was  explained  on  the  grounds  that  the 
facts  occurred  as  though  there  had  been  a  contract,  that  is  to  say, 
that  the  obligation  arose  "  quasi  ex  contractu." 

The  distinguished  and  ardent  defender  of  the  individualistic 
doctrine,  Planiol,  whom  I  have  already  on  various  occasions  cited, 
declares  that  there  are  but  two  sources  of  obligations,  contracts 
and  law.1  Evidently  under  the  orthodox  theory  this  is  logical ;  out- 
side of  contract,  that  is  to  say  of  the  agreement  of  two  minds  to 
modify  their  respective  spheres  of  legal  action,  law  alone  remains 
which,  by  its  omnipotence,  can  create  a  state  of  facts  productive 
of  legal  result. 

§  31.  The  Roman  Conception  of  Contract.  —  The  contract  also 
received  from  Roman  law  that  strong  and  rigid  structure  which  has 
been  preserved  in  our  modern  codes.  Naturally  the  classes  of  con- 
tracts are  no  longer  limited  as  in  Roman  law.  Liberty  of  contract 
is  now  a  principle ;  and  under  the  Napoleonic  Code 2  and  the  Argen- 
tine Civil  Code3  the  agreement  forms  the  law  of  the  parties,  pro- 

1  After  calling  attention  to  the  traditional  opinion  and  to  the  _  text  of 
the  Napoleonic  Code  according  to  which  five  distinct  sources  of  obligations 
exist,  viz. :  contract,  quasi-contract,  delict,  quasi-delict,  and  law,  Planiol 
adds:  "This  classification  should  cause  no  illusion;  while  not  wholly 
incorrect,  it  is  at  least  superficial,  its  terminology  is  inaccurate  and  repre- 
sents the  truth  only  indirectly.  The  truth  is,  that  all  obligations  arise 
from  only  two  sources:  contract  and  law.  .  .  .  Where  there  is  no  con- 
tract, an  obligation  can  have  no  source  except  the  law;"  "Droit  civil". 
Vol.  II,  nos.  806,  807. 

2  Art.  1134,  par.  I. 

3  Art.  1197. 

115 


§  31]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

vided,  of  course,  that  it  have  a  lawful  object.  This  manner  of  ex- 
pressing the  principle  is  not  satisfactory,  but  it  brings  out  very 
well  the  creative  force  of  the  contract.  To  possess  this  force,  to  be 
a  contract,  the  act  had  to  satisfy  certain  conditions  which  Roman 
law  determined ;  it  had  to  fit  within  the  mould  so  rigidly  con- 
structed by  Gaius,  Papinian,  and  others,  and  which  has  been 
handed  down  intact  to  Dumoulin  and  Pothier,  and  to  the  great 
codifications  of  the  nineteenth  century. 

This  mould  is  the  formula  of  the  Roman  "  stipulation  "  :  Spondes- 
ne,  Dost  thou  promise?  Spondeo,  I  promise.  To-day,  of  course, 
no  sacramental  words  are  needed ;  no  special  form  is  imposed. 
However,  two  individual  minds  must  meet ;  one  desires  to  promise 
to  perform  something  while  the  other  desires  to  benefit  by  that 
performance;  the  contract  is  born  only  when  these  two  minds, 
after  negotiation,  after  coming  into  mutual  contact,  have  agreed 
over  the  object  of  the  act.  That  is  what  a  contract  essentially  is. 
It  is  an  agreement  over  a  certain  object  following  upon  the  meeting 
of  two  individual  wills.  As  is  sometimes  said,  to  form  a  contract, 
the  act  of  will  of  one  of  the  parties  must  be  determined  by  the  act 
of  will  of  the  other.1 

§  32.  Juridical  Acts  which  are  not  Contracts.  —  When  these 
various  conditions  do  not  co-exist,  it  can  be  said  that  there  is  no 
contract  in  the  sense  of  the  Roman  and  the  individualistic  systems 
of  law.  There  may  indeed  be  concurrence  of  wills  without  a  con- 
tract ; 2  and  it  may  be  termed  a  contract ;  but  that  is  to  designate 
different  things  by  the  same  name  and  to  cause  confusion  and  error. 

In  the  life  of  modern  communities  we  see  many  instances  where 
a  state  of  facts  productive  of  legal  result  may  arise,  although  the 
source  of  the  state  of  facts  was  not  really  of  the  character  that  I 
have  just  defined.  This  is  not  surprising,  because  the  idea  that 
the  contract  is  the  source  of  the  state  of  facts  productive  of  legal 
result  rested  upon  the  notion  that  such  a  state  of  facts  always 

1  Cf.  Trie-pel,  "Volkerrecht  und  Landesrecht"  (1899  et  seq.) ;  Schloss- 
mann, "Der  Vertrag"  (1876) ;  I  say,  "  Willenserklarung  im  Thatbestande 
der  Rechtsgeschaf  t "  (1899) ;  Dereux,  "Etude  sur  les  diverses  conceptions 
actuelles  du  contrat",  in  "Revue  critique"  (1901),  p.  513,  and  (1902).  p. 
105  ;  Hauriou,  "Principes  de  droit  public"  (1910),  pp.  159  et  seq. ;  Duguit, 
"Trait 6  de  droit  constitutional".  Vol.  I,  op.  242  et  seq. 

2  [By  a  concurrence  of  wills  without  concraet  is  meant  the  manifestation 
of  two  intentions  over  the  same  object,  neither  intention  being  determined 
directly  by  the  other  by  prior  negotiation.  The  identity  of  object  is  a 
simple  fact;  the  declarations  of  will  are  unilateral  acts.  Such  unilateral 
;i<'t  s  are  seen  in  subscriptions  to  stock,  or  the  appointment  by  the  govern- 
ment to  an  administrative  post.  Duguit,  "  Droit  constitutionnel "  (1911), 
Vol.  I,  pp.  242  et  seq.,  pp.  4G9  et  seq.  —  Transl.] 

116 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  33 

constitutes  a  relation  between  two  wills.  The  moment  that  we 
recognize  that  a  state  of  facts  may  produce  a  legal  result  without 
possessing  this  character,  we  necessarily  admit  that  such  a  state  of 
facts  can  arise  from  other  sources  than  a  contract,  in  the  sense  in 
which  that  word  is  used  in  the  individualistic  system  of  law. 

But  most  jurists  are  dominated  by  the  orthodox  conception ; 
instead  of  seeing  in  all  these  acts  new  legal  instrumentalities, 
unknown  to  the  individualistic  system  of  law,  instead  of  analyzing 
their  novel  character,  they  have  preferred  to  squeeze  them  at  all 
costs  into  the  old  narrow  mould  of  the  contract.  As  in  the  case  of 
collective  personality,  they  have  put  forth  prodigious  efforts  of 
scholastic  subtlety  to  prove  that  all  these  new  acts  are  in  reality 
traceable  to  contracts.  Of  course  they  failed.  Success  was  im- 
possible ;  they  could  not  prove  that  something  that  was  not  really 
a  contract  was  one.  Besides,  have  they  not  admitted  the  truth  by 
adding  qualifying  terms  to  the  word  contract,  —  terms  which 
obviously  would  have  been  needless  if  the  act  really  were  a  con- 
tract? They  speak  of  conduct  indicative  of  assent  and  "  equiva- 
lent to  a  contract",  "  gate  contracts",  "  collective  contracts ", 
"  contracts  of  collaboration  " ;  none  of  these  is  a  contract  at  all. 

§  33.  Conduct  Equivalent  to  Contract.  —  The  simplest  example 
of  what  many  jurists  term  conduct  indicative  of  assent  and  equiva- 
lent to  a  contract 1  is  the  familiar  automatic  slot-machine.  A 
manufacturer  or  an  administrative  bureau  of  the  Government, 
by  placing  a  mechanical  distributor  of  this  kind  in  a  public  place, 
creates  a  state  of  facts  whereby  any  person  placing  in  the  machine 
the  required  piece  of  money  becomes  creditor  of  the  object  adver- 
tised on  the  machine  or  of  the  repayment  of  his  money.     It  is 

1  "Contrat  d'adhesion."  Upon  such  contracts,  cf.  especially  :  Dereux, 
"Revue  trimestrielle  de  droit  civil"  (1910),  pp.  503  et  seq.  (Dereux  makes 
a  distinction  which  I  do  not  particularly  favor,  viz.,  between  essential  and 
accessory  clauses.)  Cf.  also  Fortier,  "Des  pouvoirs  du  juge  en  matiere  de 
contrat  d'adhesion"  (1909,  thesis,  University  of  Dijon)  ;  Hauriou,  "Notes  " 
under  title  "Conseil  d'Etat",  Chauvin's  Case,  March  23,  1906,  reported 
in  Sirey  (1908),  III,  p.  17,  and  the  case  of  the  Compagnie  Generale  Trans- 
atlantique,  May  17,  1907,  reported  in  Sirey,  1908,  III,  p.  137.  Hauriou 
says  very  justly:  "A  subscription  contract  ('contrat  d'abonnement')  is 
simply  conduct  indicative  of  assent  and  equivalent  to  a  contract ;  perhaps, 
indeed,  it  would  be  better  to  suppress  the  word  contract  and  call  it  an  act 
of  assent  to  an  organized  public  service.  .  .  .  Acts  of  assent  have  nothing 
contractual  about  them  though  they  may  be  called  contracts ;  they  are 
simply  acts  of  assent  to  existing  regulations"  ;  cf.  Sirey,  1908,  III,  p.  18, 
col.  3,  and  p.  19,  col.  3 ;  cf.  also  Saleilles  ,  "De  la  declaration  de  volonte" 
(1901),  p.  230;  Dollat,  "Les  contrats  d'adhesion",  pp.  133  el  seq.;  note 
by  Bourcart  to  decision  of  the  Court  of  Cassation,  January  4,  1910,  Sirey, 
1911,  I,  p.  521,  where  he  calls  conduct  indicative  of  assent  a  pseudo- 
contract. 

117 


§  33]  PART   I      READJUSTMENT   OF   LAW  [CHAP.    Ill 

claimed  that  this  is  a  contract  by  "conduct  indicative  of  assent",  be- 
cause the  party  using  the  machine  indicates  by  his  conduct  his  as- 
sent to  a  certain  state  of  facts  and  this  assent  constitutes  a  contract. 

I  do  not  dispute  the  fact  that  there  really  is  conduct  indicative 
of  assent  to  a  certain  state  of  facts.  But  I  do  maintain  that  it  is 
incorrect  to  try  to  trace  this  act  to  the  classic  contract.  We  do 
not  find  here  two  wills  in  one  another's  presence,  meeting  and  agree- 
ing. The  two  wills  are  wholly  unknown  to  each  other,  and  do  not 
dictate  by  any  common  accord  the  terms  of  the  alleged  contract. 
There  is  one  will  which  has  given  rise  to  a  state  of  fact  not  isolated 
and  transient  but  general  and  permanent  in  its  nature ;  and  an- 
other will  desirous  of  profiting  by  that  state  of  fact.  In  reality 
what  appears  to  be  a  subjective  right  springs  out  of  a  unilateral 
will.  The  party  aims  to  do  a  juridical  act,  and,  by  using  the 
mechanism,  executes  his  desire  lawfully  and  effectively,  because  it 
conforms  to  a  state  of  fact  recognized  as  lawful.  I  see  no  meeting 
of  minds ;   I  see  only  a  unilateral  declaration  of  will. 

§  34.  Acts  of  Use  of  a  Public  Service. — The  same  may  be  said, 
though  perhaps  more  positively,  of  the  act  of  the  individual  who, 
desiring  to  make  use  of  a  public  service,  pays  the  charge  fixed  by 
law  for  the  service.  The  most  typical  example  is  that  of  stamping 
and  posting  a  letter.  The  individualist  tells  us  that  these  acts 
create  a  contract  of  carriage  between  the  State,  as  carrier,  and  the 
sender,  and  that  this  contract  is  to  be  governed  by  the  ordinary 
rules  of  law  covering  the  contract  of  carriage.  This  seems  to  me 
to  be  a  wholly  incorrect  way  of  analyzing  the  situation.  There  is 
no  contract,  but  a  unilateral  act  on  the  part  of  the  sender  alone. 
The  law  organizing  the  public  service  has  created  such  a  legal 
situation  as  enables  any  individual  to  will  with  legal  effect.  Merely 
by  paying  a  sum  fixed  by  the  organic  law  of  the  service  he  may  will 
that  an  object  shall  be  transported  from  one  place  to  another. 
There  is  discoverable  here  simply  a  lawful  line  of  conduct;  by 
mailing  the  letter  the  sender  willed  according  to  law,  that  is,  con- 
formably with  the  law  regulating  the  public  service ;  his  act  of  will 
must  be  protected.  Is  it  not  a  strange  sort  of  contract  where  the 
parties  are  bound  in  advance  and  unable  to  fix  the  terms  of  their 
contract?  But  the  situation  is  explained  if  we  regarded  it  as  a 
unilateral  act,  productive  of  result  because  done  agreeably  to  the 
law  of  the  public  service.1 

1  ('/.,  contra,  Geny,  "Des  droits  sur  les  lettres  missives"  (1911),  I,  p.  52, 
who  after  a  long  discussion  concludes  without  hesitation  "that  this  situa- 
tion is  governed  as  a  matter  of  principle  and  as  a  matter  of  law  as  a  true 
contract."     I  think  that  I  had  already  answered  this  view  in  an  article 

118 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  35 

These  are  not  mere  subtleties  of  argument,  nor  considerations  of 
a  purely  theoretic  nature.  But  even  were  they  such,  it  would  be 
of  moment  to  throw  light  upon  these  points,  for  it  has  been  said, 
and  rightly,  that  it  is  always  highly  important  to  have  one's  ideas 
theoretically  sound.  But  the  practical  interest  is  apparent.  If  a 
contract  to  carry  exists,  the  liability  of  the  State  as  a  carrier  will 
have  to  be  tested  by  the  common  rules  governing  the  contract  of 
transport ;  the  problem  is  purely  contractual.  But  if  there  is 
simply  the  unilateral  act  of  a  member  of  the  public  who  desires  to 
use,  in  accordance  with  the  law,  a  public  service  operated  in  the 
interests  of  all,  we  face  a  different  problem,  that  of  liability  of  a 
public  service  towards  private  individuals,  and  the  solution  will 
depend  upon  quite  a  different  order  of  ideas.  I  greatly  regret  that 
I  can  not  discuss  them  here. 

§  35.  Acts  constituting  so-called  Collective  Contracts.  —  The 
most  interesting  new  act  which  is  making  its  appearance  in  modern 
juridical  relations  is  what  has  been  very  inexactly  termed  the 
"  collective  contract."  The  expression  contains  in  itself  a  con- 
tradiction. The  contract  is  by  nature  and  by  definition  essentially 
individualistic.  I  showed  that  this  was  true  earlier  in  our  inquiry. 
The  character  of  the  contract  and  of  the  group  are  exclusive  of  one 
another.  Jurists  aggravate  their  mistake  of  giving  this  act  the 
name  of  collective  contract  by  their  desire  to  force  it  at  all  costs 
within  the  traditional  contractual  mould. 

Two  years  ago  the  "  Societe  d'Etudes  Legislatives",  which  counts 
among  its  members  the  most  learned  men  in  the  law  in  France, 
wished  to  draft  an  act  to  govern  the  collective  contract  of  labor, 
which  might  serve  as  a  guide  to  the  Chambers  when  they  desired 
to  legislate  on  the  subject.  A  committee  prepared  a  law  directly 
inspired  by  the  general  principles  of  the  civil  law  of  contracts. 
Its  labors  were  without  enduring  result,  and  the  very  just  criticism 
was  made  that  the  incurable  defect  of  the  bill  was  to  relate  this 
new  form  of  juridical  act  to  the  old  form  of  contract,  when,  in  fact, 
it  presented  a  wholly  different  character.  The  draft  of  the  Com- 
mittee fell  through  in  debate.1 

contributed  to  the  "Revue  du  droit  public"  (1907),  pp.  411  et  seq. ;  in  a 
contribution  to  the  meeting  of  the  Congress  of  the  Administrative  Sciences, 
held  in  Brussels  in  1910;  and  in  my  "Traite  de  droit  constitutionnel", 
Vol.  I,  p.  106.  Besides  the  notes  by  Hauriou  cited  in  the  preceding  note, 
cf.  Jeze,  "Revue  du  droit  public  "  (1909) ,  p.  48.  Upon  the  same  question, 
with  regard  to  the  parcel  post,  cf.  two  decisions  of  the  Court  of  Appeals  of 
Bordeaux,  July  8,  1909,  Sirey,  1911,  Part  II,  p.  233,  and  the  very  interest- 
ing note  by  Ferron. 

1  Cf.  the  reports  made  to  the  "Societe  d'etudes  legislatives"  by  Cohort 
in  the  "Bulletin"   (1907),  pp.  180  and  505;    the  notes  by  Morin  and 

119 


§  35]  PART    I      READJUSTMENT   OF   LAW  [Chap.    Ill 

If  I  were  to  name  these  acts,  incorrectly  called  collective  con- 
tracts, I  would  say  that  they  were  "  compacts  equivalent  to  laws." 
Let  me  explain. 

§  36.  Concession  to  Operate  a  Public  Service.  —  In  modern 
societies  the  collective  contract  is  exemplified  in  two  classes  of 
acts ;  the  concession  to  operate  a  public  service,  and  the  so-called 
collective  contract  of  labor. 

A  concession  is  in  general  an  act  by  which  a  community,  the 
State,  county,  or  municipality,  charges  a  private  party,  usually  a 
company  (who  accepts  the  charge),  with  the  obligation  of  providing, 
subject  to  fixed  conditions,  a  certain  service  to  the  public.  Aside 
from  differences  in  detail,  such  acts  are  met  with  in  all  modern 
countries,  and  they  possess  the  same  general  essential  character. 
Nowadays  they  are  granted  chiefly  to  provide  the  public  with  the 
means  of  transportation  by  steam  railways,  street  railways,  omni- 
bus lines,  and  also  to  supply  gas  and  electricity  for  lighting  cities. 

Concessions  are  certainly  contracts.  They  contain  an  element 
in  the  strictest  sense  contractual,  namely,  those  provisions  govern- 
ing solely  the  relations  between  the  community,  as  grantor,  and  the 
grantee,  for  example  the  terms  relating  to  the  consideration  of  the 
grant.  But  concessions  also  contain,  —  and,  in  fact,  these  form 
the  most  important  element  —  a  series  of  provisions  affecting  third 
parties,  the  public.  Such  are,  for  example,  all  those  provisions 
which  determine  the  conditions  upon  which  the  concession  is  to  be 
worked  :  the  scale  of  prices,  the  conditions  of  labor  of  the  employees 
of  the  grantee.  The  latter  class  of  provision  is  found  in  many  of 
the  contracts  granting  such  concessions  in  Europe.  In  France, 
under  the  Millerand  Decree  of  August  10,  1899,  they  must  be 
inserted  in  all  transactions  concluded  by  the  State. 

What  is  the  character  of  these  clauses  ?  Lawyers  of  the  individ- 
ualistic school  have  been  much  embarrassed  to  determine.  Such 
provisions  directly  affect  persons  who  are  strangers  to  the  con- 
tract :  the  public,  passengers,  consumers  of  gas  and  electricity, 
employees ;  clearly  these  persons  are  not  privy  to  the  so-called 
contract  which  grants  the  concession.  Now  it  is  a  principle  of  the 
law  of  contracts  that  they  only  affect  the  contracting  parties,  that 
is,  that  they  neither  harm  nor  benefit  third  parties.  The  Napole- 
onic Code  in  Article  1165  is  explicit ;  Articles  1195  and  1199  of  the 
Argentine  Civil  Code  are  equally  so.  The  last  deserves  quoting : 
"  Contracts  may  not  be  pleaded  against  third  parties  nor  in  their 

Barthelemy-Reynaud,  ibid.  (1907),  pp.  208  and  421 ;   Saleilles,  ibid.   (1908), 
p.  79  ;  the  discussion  ibid.  (1907),  pp.  532  et  seq. ;  (1908),  pp.  82  et  seq. 

120 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  36 

behalf  except  in  the  cases  provided  for  by  Articles  1161  and  1162." 
It  is  precisely  upon  these  exceptions  and  the  analogous  ones  con- 
tained in  Articles  1120  and  1121  of  the  Napoleonic  Code  governing 
promises  for  the  benefit  of  third  parties,  that  the  individualists  have 
relied  to  explain  this  class  of  provision  in  concessions.  Broadly 
speaking,  these  Articles  permit  a  stipulation  for  the  benefit  of  a 
third  party  and  declare  it  enforceable  if  the  third  party  has  ac- 
cepted it.  These  articles  serve  to  explain  nothing  to  me,  and  in- 
deed, are  absolutely  irrelevant  to  the  question  of  concessions. 
They  permit,  it  is  true,  the  insertion  in  a  contract  of  a  special  clause 
having  a  determined  and  precise  object  and  creating  a  right  or  duty 
in  a  third  party,  if  he  assents  to  it.  But  that  is  not  what  takes  place 
in  the  grant  of  a  concession.  That  part  interesting  third  parties 
contains  no  special  clause  benefiting  or  charging  a  particular  person  ; 
it  usually  contains  a  series  of  regulations  which  establish  in  advance 
the  status  of  the  grantee  and  employees  on  the  one  hand,  and  the 
grantee  and  the  public  who  use  the  service  on  the  other.  There 
is  no  stipulation  either  benefiting  or  charging  a  third  party  in  the 
case ;  there  is  simply  the  text  of  a  set  of  regulations  which  are  to  be 
applied  subsequently  to  a  series  of  isolated  acts. 

Now,  whether  you  will  or  not,  such  regulations  are  simply  a  law. 
They  are  of  a  general  nature  and  that  is  the  true  quality  of  a  law. 
By  this  means  the  law  which  is  to  govern  the  public  service  is  estab- 
lished contractually.  The  general  law  of  contracts  can  not  be 
applied ;  it  has,  in  fact,  been  replaced  by  a  new  law.  General 
contract  law  was  intended  to  regulate  the  relations  between  individ- 
uals. Here  we  are  in  the  presence  of  an  act  regulating  the  man- 
agement of  a  public  service.     The  difference  must  be  admitted. 

The  consequences  of  this  change  in  theory  have  great  practical 
importance;  but  I  can  not  consider  them  here.1  They  are,  briefly, 
that  in  case  the  grantee  or  the  governmental  administrative  agent 
does  not  respect  the  provisions  relating  to  third  parties,  such  third 
party,  be  he  a  mere  member  of  the  public,  or  an  employee,  shall 
be  armed  with  all  those  legal  means  of  compulsion  which,  in  the 
country  under  consideration,  belong  to  parties  who  are  privy  to  a 
contract,  for  the  enforcement  of  the  rules  governing  the  operation 
of  the  public  service.2 

1 1  tried  to  show  the  main  consequences  in  a  contribution  to  the  "Con- 
gres  des  sciences  administratives",  which  met  in  Brussels  in  August,  1910. 

2  For  the  character  of  concessions  to  operate  a  public  service  and  their 
effects,  cf. :  Duguit/'Hevue  du  droit  public"  (1907),  p.  411;  Jcze,  ibid. 
(1909),  p.  49  and  (1910),  p.  270;  Rolland,  ibid.  (1909),  p.  520;  opinion  by 
Tardieu,  decision  of  the  Council  of  State,  Dec.  6,  1907,  in  the  case  of 

121 


§  37]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

§  37.  So-called  Collective  Contracts  of  Labor.  —  The  collective 
contract  of  labor  appears  under  somewhat  different  conditions  of 
fact.  Its  legal  nature  is,  however,  analogous  to  that  of  the  con- 
cession. I  doubt  whether  there  are  many  examples  of  this  contract 
in  the  Argentine  Republic.  In  England  and  France  it  is  often 
employed ;  indeed,  so  important  is  it  that  the  French  Ministry 
has  reported  two  bills  on  the  subject  to  the  Chamber  of  Deputies  ; l 
though  in  my  opinion  the  time  is  not  yet  ripe  to  legislate  on  the 
subject. 

The  most  frequent  source  of  this  collective  contract  is  the  labor 
strike.  Let  us  suppose  that  a  strike  of  masons  is  declared,  and 
that  it  ends  when  an  understanding  is  reached  between  the  organ- 
ized employers  of  masons  and  the  masons'  union.  By  this  under- 
standing it  is  agreed  that  henceforth,  in  the  particular  locality,  the 
individual  contracts  of  employment  of  masons,  in  so  far  as  salary, 
hours  of  labor,  etc.  are  concerned,  shall  be  made  to  conform  with 
the  conditions  fixed  by  the  understanding.  It  can  not  be  doubted 
that  such  an  agreement  is  lawful.  Its  object  is  lawful ;  it  is  deter- 
mined by  a  purpose  in  harmony  with  social  solidarity,  if  ever  such  a 
purpose  existed.  What  will  be  the  effect  of  such  an  agreement? 
I  see  but  this :  if  an  employee  hires  workmen  upon  other  terms 
than  those  stipulated  in  the  collective  contract  of  labor,  the  indi- 
vidual contract  of  employment  will  be  void. 

But  who  may  seek  the  cancellation  of  the  individual  contract  ? 
And  when  ?  Let  us  suppose  an  employer  hires  a  workman  who  was 
not  a  member  of  the  union  when  the  understanding  was  reached, 
that  is  to  say,  when  the  collective  contract  was  entered  into,  or  who 
has  resigned  from  membership  since  that  time.  Is  the  individual 
contract  of  employment  with  such  a  workman  void  because  it  does 
not  conform  to  the  collective  contract?  If  an  employer,  once  a 
member  of  the  employers'  organization  which  was  a  party  to  the 

"Grandes  Compagnies  de  dipmin  do  fer",  reported  in  "Reeueil",  p.  913 
and    Urey,  1908,  Pari  [II,  p.  1;  opinion  by  Blum,  decision  of  the  Council 
te,  March  11,  1910,  in  the  ease  of  "Compagnie  des  Tramways  de 
illes",  reported  in  "Reeueil",  p.  97,  and  "Revue  du  droit  public", 
1910,  p.  270,  with  the  interesting  article  by  Jeze,  already  cited,  upon  the 
nature  of  i  be  grunt  of  a  <  >n  to  construct  a  public  work. 

'The  bills  were  submitted  by  Doumergue,  Minister  of  Commerce, 
July  7,  1906,  and  by  the  Briand  ministry,  July  11, 1910.  Upon  the  collec- 
>n1  ract  of  labor  cf.  Truchy,  "  K<'\  ue  d'eVjonomie  politique  "  (1905),  p. 
868;  Jay,  ibid.  (1907),  pp.  561  and  649;  Nast,  "Des  conventions  collec- 
tives relatives  .:i  L' organization  du  travail"  (thesis,  1907);  Passama,  "  l^cs 
conventions  collectives  relatives  aux  conditions  du  travail"  (1908); 
BarthSUmy-Reynaud,  "Le  contract  collectif  de  travail"  (thesis,  1901); 
and  tin  reports  and  discussions  of  the  "SociSte"  d'6tudes  legislatives", 
supra,  p.  71,  nolc  1,  particularly  the  reports  by  Cohort.. 

122 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§  38 

collective  contract,  withdraws  from  such  organization,  is  he  still 
bound  by  this  contract?  Can  the  workman  individually  demand 
the  cancellation  of  his  contract  of  employment  when  its  terms 
violate  the  collective  contract,  or  may  the  union  alone  do  this? 
Or  must  the  organization  of  employers  join  ? 

These  are  some  of  the  important  and  delicate  problems  presented. 
To  answer  them,  the  individualistic  school  (anxious,  at  all  costs,  to 
maintain  the  orthodox  conception  of  the  contract)  has  found  no 
better  means  than  to  introduce  the  principle  of  agency.  In  the 
grant  of  a  concession  to  operate  a  public  service  it  invoked  the 
stipulation  for  the  benefit  of  a  third  party.  As  that  was  impossible 
in  collective  contracts  of  labor,  it  fell  back  upon  agency.  The 
collective  contract,  says  the  individualist,  is  entered  into  between 
two  organizations;  it  can  affect  only  those  who  may  be  regarded 
as  having  given  tacit  power  to  their  organization  to  speak  for  them. 
Consequently  the  collective  contract  can  produce  no  effect  upon 
the  situation  of  those  workmen  or  employers  who  did  not  belong 
to  their  respective  organizations  when  the  collective  contract  was 
closed.  Furthermore,  a  power  is  by  nature  always  revocable ; 
no  one  is  obliged  to  remain  a  member  of  his  organization.  Em- 
ployers and  workmen  are,  therefore,  always  free  to  withdraw  and 
to  terminate  the  effect  of  the  collective  contract  upon  themselves. 
That  is  saying  that  the  collective  contract  ceases  to  produce  con- 
sequences as  to  them. 

This  was  the  theory  adopted  by  the  "  Societe  d 'Etudes  Legisla- 
tives", which  I  mentioned  above.  This  learned  body  discussed 
the  difficulties  and  contradictions,  and  discovered,  as  it  was  bound 
to  do,  that  there  was  no  solution. 

§  3S.  Compacts  Equivalent  to  Laws.  —  The  collective  contract 
is  a  class  of  juridical  act  that  is  quite  new  and  altogether 
foreign  to  the  orthodox  moulds  of  the  individualistic  system. 
It  is  a  "  compact  equivalent  to  a  law",  which  regulates  the  relations 
of  two  groups  of  society.  It  is  not  a  contract  giving  rise  to  special, 
specific,  and  transient  obligations  between  two  subjects  of  right. 
It  is  a  law  establishing  permanent  and  lasting  relations  between 
two  groups  of  society :  it  fixes  the  legal  conditions  which  are  to 
enter  into  the  individual  contracts  concluded  between  members 
of  the  two  groups.  This  is  the  true  point  of  view ;  it  solves  the 
difficulty  and  presents  a  basis  upon  which  the  law  of  the  so-called 
collect ive  contract  may  be  constructed. 

I  readily  admit  that  even  in  France,  Germany,  and  England 
this  part  of  the  law  is  still  in  process  of  development  and  far  from 

123 


38] 


PART   I      READJUSTMENT   OF    LAW 


[Chap.   Ill 


crystallization.  As  a  legal  conception  it  assumes  that  the  different 
working  classes  have  definitely  organized  according  to  law,  and 
that  each  industry  has  formed  a  union  strong  and  comprehensive 
enough  for  it  and  the  whole  body  of  workmen  of  that  class  to  be 
co-extensive  and  for  the  isolated  employer  and  laborer  to  be  con- 
sidered negligible  quantities.  In  my  opinion  many  European 
countries  are  moving  towards  such  a  social  and  industrial  state. 
But  they  are,  perhaps,  still  far  from  their  goal.  Meanwhile,  the 
collective  contract  of  labor  remains  unfinished  and  rough  hewn. 
But  such  as  it  is  —  and  this  is  the  important  point  —  it  certainly 
exists  entirely  outside  the  old  mould  of  the  contract. 

Collective  contracts  raise  a  question  of  public  law  of  great 
moment ;  I  can  advert  to  it  only  in  passing.  I  have  just  spoken  of 
compacts  equivalent  to  laws ;  but  are  not  compact  and  law  two 
notions  exclusive  of  one  another?  Is  not  law  the  rule  emanating 
from  the  sovereign  authority  and  imposed  as  such  upon  the  sub- 
jects of  that  authority  ?  It  used  to  be  so  defined ;  but  it  is  no 
longer  that,  or  not  exclusively  that  in  every  case.  In  modern  public 
law  an  evolution  is  taking  place  corresponding  to  that  in  private 
law.  As  the  autonomy  of  the  individual  is  disappearing,  so  the 
sovereignty  of  the  State  is  disappearing.  As  subjective  right 
in  the  individual,  exemplified  in  its  most  intense  form  by  "domin- 
ium ",  is  disappearing,  so  the  subjective  right  in  the  State,  the 
"  imperium",  is  disappearing.  There  is  no  longer  any  reason 
why  one  source  of  law  should  not  be  those  rules  of  conduct  estab- 
lished by  a  compact  between  groups  of  society  and  sanctioned  by 
the  material  forces  of  government.1 


V.     The   New   Conception  of  Liability  for  an  Injurious 

Act 


§  39.  The  Individualistic  Principle 
of  Liability. 

§  40.  Subjective  Liability  for  an 
Injurious  Act  and  Objec- 
tive Liability  for  Risk. 

§  41.     Objective  Liability  attaches 


only  to  Groups. 
§  42.     Liability     for     Injuries     to 

Workmen. 
§  43.     Liability  for  Injury  in  Public 

Service. 


§  39.  The  Individualistic  Principle  of  Liability.  —  But  little  time 
is  left  me  to  treat  the  great  and  serious  problem  of  liability.     I 

1  Cf.  Duguit,  "  Le  droit  social,  le  droit  individual  et  la  transformation  de 
1'Etat"  (2ded.  L911,  F.  Alcan);  "Traite"  de  droit  constitutionnel"  (1911), 
Vol.  I.  pp.  67  et  seq.  [The  former  of  these  works,  expounding  the  notable 
philosophy  of  the  present  author, is  in  pari  translated  in  Vol.  VII  of  the 
Modem  Legal  Philosophy  Series,  "Modern  French  Legal  Philosophy" 
(Boston,  1916).  -  Ed.] 

124 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§  40 

shall  try  to  cover  the  essential  points  and  to  show  how  in 
this,  as  in  all  parts  of  the  law,  an  evolution  of  a  social  nature  is 
still  going  on. 

The  individualistic  principle  of  liability  is  expressed  in  Article 
1382  of  the  Napoleonic  Code  :  "  Any  act  by  which  a  person  causes 
damage  to  another  binds  the  person  by  whose  fault  the  damage 
occurred  to  repair  such  damage."  Almost  the  same  words  are 
found  in  Article  1109  of  the  Argentine  Code :  "  Whoever  does  an 
act,  which  by  his  fault  or  negligence  causes  damage  to  another,  is 
bound  to  repair  the  damage.  .  .  ." 

§  40.  Subjective  Liability  for  an  Injurious  Act  and  Objective 
Liability  for  Risk.  —  The  rule  is  very  simple  and  very  consistent 
with  the  whole  structure  of  the  individualistic  system. 

In  the  relations  between  two  subjects  of  right  an  obligation  can 
only  arise  out  of  contract.  But  if  a  wrongful  or  negligent  act  can  be 
imputed  to  a  party,  this  imputation  raises  an  obligation  in  him  to 
repair  the  injury  which  he  has  caused  to  the  subject  of  right.  The 
party  who  alleges  the  injury  must,  therefore,  prove  the  wrong  or 
negligence  of  the  actor.  In  the  last  analysis  it  is  still  the  will  of 
the  subject  of  the  right  which  is  the  generating  cause  of  the  legal 
relation  between  the  parties.  In  this  system  it  is  invariably  the 
principle  of  moral  imputation  that  is  the  sole  basis  of  both  the 
civil  and  the  criminal  liability  of  the  subject  of  right.  Hence 
the  system  has  been  named  that  of  subjective  liability. 

I  do  not  pretend  that  subjective  liability  has  disappeared  or 
should  disappear  completely ;  in  the  relations  between  individuals 
it  continues  and  no  doubt  will  continue  for  a  long  time  to  come. 
I  do  claim  that  the  domain  of  subjective  liability  is  narrowing  and 
that  imputation  can  no  longer  be  the  criterion  of  liability  where 
the  question  is  not  one  arising  between  individuals,  but  between 
groups  or  between  groups  and  individuals.  And  it  is  not  to  be 
denied  that  there  very  often  does  exist  in  fact  a  relation  between 
groups  or  between  groups  and  individuals  when  there  appear  to  be 
only  isolated  relations  between  individuals.  In  that  case  it  is  not 
a  question  of  imputation,  but  simply  a  question  of  risk.  The 
problem  is  to  determine  what  interests  should  ultimately  support 
the  risks  attached  to  the  activity  of  the  group  under  consideration. 
When  the  problem  is  so  viewed  there  can  aiise  an  objective  respon- 
sibility, something  distinct  from  subjective  responsibility.  To 
determine  whether  liability  exists,  we  no  longer  inquire  whether  a 
wrongful  or  negligent  act  has  been  committed,  but  simply  which 
group  must  eventually  support  the  risk.     The  only  proof  is  the 

125 


§  41]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

damage  caused ;  once  this  is  established,  liability  results,  auto- 
matically, as  it  were. 

§  41.  Objective  Liability  attaches  only  to  Groups.  —  It  is  easy 
to  see  how  this  sort  of  liability  has  been  a  consequence  of  the 
socialization  of  law.  When  those  acts  of  a  man's  life  to  which 
legal  results  attached  were  viewed  simply  as  relations  between 
individual  and  individual,  and  when  all  acts  interesting  society 
were  derived  from  the  autonomy  of  the  individual  will,  it  was  im- 
possible to  imagine  the  rise  of  an  obligation  save  as  the  product 
of  the  will.  The  bearer  of  subject  of  right  wills  conformably  to 
law :  he,  thereby,  becomes  a  creditor  or  a  debtor ;  he  wills  con- 
trary to  law ;  he  is  made  liable  and  becomes  a  debtor  to  the  extent 
of  the  damage  caused. 

But  to-day  the  life  of  the  community  and,  therefore,  life  as  it 
is  reflected  in  the  law,  is  the  product  of  a  division  of  labor  into  activ- 
ities of  the  individual  and  activities  of  groups.  Groups  are  not, 
as  we  have  seen,  subjects  of  will ;  liability  cannot  be  imputed  to 
them.  But  group  activity  is  none  the  less  an  important  element 
of  social  activity.  The  labor  which  the  group  performs  no  doubt 
benefits  society  as  a  whole,  but  its  more  immediate  benefit  redounds 
to  the  members  of  the  group.  If  the  latter  reaps  the  proximate 
benefit,  it  is  fair  that  it  support  the  risk  to  which  the  exercise  of 
that  activity  subjects  individuals  and  other  groups. 

This  is  the  very  simple  conception  upon  which  hang  all  the  cases 
of  objective  liability.1 

It  would  be  interesting  to  study  in  detail  the  examples  of  objec- 
tive liability  to  be  found  in  modern  statutes  and  cases.  I  cannot 
do  more  than  refer  to  the  two  most  important  instances,  those  of 
liability  for  accidents  to  workmen  and  of  liability  for  injury  in  a 
public  service. 

§  42.  Liability  for  Injuries  to  Workmen.  —  The  Act  of  April 
9,  1898,  relating  to  accidents  to  workmen,  as  completed  and  ex- 
panded by  the  Act  of  April  12,  1906,  is  the  first  law  in  France  to 
create  an  express  instance  of  objective  liability.  It  already  existed 
in  certain  countries,  notably  England  and  Germany.  Before  the 
passing  of  this  law,  an  effort  had  been  made  in  France  by  text 
writers  and  Courts  to  prepare  the  ground  for  the  Act  by  shifting 
the  burden  of  proof.     The  employer  was  declared  to  be  always 

1  [For  the  history  of  this  doctrine  of  objective  liability  in  Anglo-American 
law,  sec  Holmes,  "The  Common  Law",  pp.  92,  144;  Wigmore,  "Responsi- 
bility  for  Tortious  Ads",  Barvard  Law  Rev.,  VII,  315,  383,  442;  Ames, 
"  Law  and  Morals",  ibid.,  XXII,  97.  —  Ed.] 

120 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§  42 

liable  for  the  accident  unless  he  proved  that  fault  was  imputable  to 
the  workman.  They  tried  to  justify  their  doctrine  by  torturing 
the  sense  of  several  provisions  of  the  Napoleonic  Code,  especially 
Articles  1384  and  following.1  Finally,  the  Act  of  1898  created  a 
complete  system  of  objective  liability.  You  are  of  course  already 
acquainted  with  the  principle :  when  a  workman  is  injured  while 
at  work  or  by  reason  of  his  employment,  the  employer  owes  him 
damages,  which  are  fixed  by  law  upon  the  basis  of  his  salary.  The 
workman  has  merely  to  establish  the  fact  of  the  accident;  the 
employer  cannot  excuse  himself  by  proving  that  there  was  negli- 
gence or  want  of  skill  on  the  part  of  the  workman,  he  can  only 
escape  liability  by  showing  that  the  workman  injured  himself 
intentionally. 

The  individualistic  school  is  still  active  in  its  criticism  of  the 
system.  Obviously  it  is  wholly  repugnant  to  individualistic 
principles.  But  the  spread  of  the  system  is  one  of  the  best  proofs 
of  the  defeat  of  individualism.  If  we  consider  in  industrial  con- 
cerns only  the  isolated  relation  between  employer  and  employee, 
evidently  there  can  arise  against  the  employer  merely  a  subjective 
liability  for  a  wrongful  act.  The  only  question  that  might,  perhaps, 
be  raised  would  be  whether  the  liability  were  "  ex  contractu  "  or 
"  ex  delicto."  But  in  modern  industrial  communities  this  is  no 
longer  the  situation.  Industrial  establishments  have  acquired  a 
social  importance ;  the  employer  exercises  truly  a  social  function. 
In  reality  two  social  elements  are  brought  face  to  face :  capital  and 
labor.  The  whole  problem  is  to  determine  which  of  these  two 
elements  ought  to  support  the  risks  of  the  enterprise  or  whether  it 
ought  to  be  supported  by  them  both  ;  and  lastly,  whether  an  acci- 
dent to  an  employee,  or  his  death,  constitutes  a  part  of  that  risk. 
As  the  element  of  capital,  apparently  at  least,  enjoys  all  the  profits 
of  the  enterprise,  the  conclusion  has  followed  that  this  is  the  element 
which  ought  to  support  all  the  risks  and  which  consequently  is 
liable  for  accidents.  But  this  liability  is  one  in  which  the  element 
of  imputation  is  entirely  foreign. 

But  can  it  be  truthfully  said  that  capital  alone  benefits  by  the 
enterprise  ?  Is  not  the  element  of  labor  in  reality  always  a  partici- 
pant in  the  profits?  Is  the  employee  not  destined  to  be  asso- 
ciated more  and  more  in  the  profits?     Would  it  not  conform  more 

1  Cf.  particularly  Josserand,  "De  la  responsabilite  du  fait  des  choses 
inanimees"  (1897) ;  Saleilles,  "Les  accidents  du  travail  et  la  responsabilite 
civile",  from  the  "Revue  bourguignonne  de  l'enseignement  superieur" 
(1894),  pp.  655  et  seq. 

127 


§  42]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

with  the  trend  of  modern  social  evolution  to  place  the  risk  upon 
capital  and  labor  in  common,  though  perhaps  not  equally?  In 
any  case,  should  not  enterprises  be  at  once  distinguished  according 
as  the  employee  is  or  is  not  in  fact  associated  in  the  advantages 
of  his  employment  by  participating  in  the  profits?  These  are 
problems  of  political  economy  that  I  would  indicate,  but  cannot 
here  discuss. 

To  the  liability  for  injuries  to  workmen  should  be  assimilated 
the  objective  liability  recognized  many  times  by  the  Courts  for 
damage  caused  by  things,  rather  than  by  persons.  The  Courts 
hold  that  the  owner  must  repair  the  damage  caused  by  the  thing 
belonging  to  him  unless  he  establishes  the  fault  of  the  injured 
party.  Property  here  ceases  to  be  a  right  and  becomes  a  social 
function,  as  I  shall  try  to  demonstrate  in  the  following  chapter. 
As  the  owner  enjoys  the  benefit  of  his  health,  he  it  is  who  should 
support  the  risk  of  the  damage  occasioned  by  it.1 

§  43.  Liability  for  Injury  in  Public  Service.  —  Lastly,  objective 
liability  appears  very  clearly  in  what  I  call,  by  way  of  abbreviation, 
liability  for  injury  in  a  public  service.  It  should  be  called  the 
liability  of  the  public  treasury  by  reason  of  facts  arising  in  the 
operation  of  a  public  service.  The  decisions  of  the  French  Council 
of  State  have  established  a  doctrine  in  this  matter  that  is  essentially 
protective  of  the  public  who  enjoy  the  service  and  which  is  certainly 
more  progressive  than  any  existing  in  foreign  countries.  It  is 
impossible  for  me  to  go  into  it  here ;  I  would  have  to  develop  the 
whole  theory  of  a  public  service,  and  that  would  be  outside  my 
program.  It  must  suffice  to  say  that  the  French  doctrine  is  based 
entirely  upon  the  idea  that  the  public  treasury  must  support  the 
risks  to  the  individual  which  attend  the  operation  of  a  public 
service  ;  that  the  Council  of  State  no  longer  obliges  the  individual 
to  prove  that  actual  fault  is  chargeable  to  the  agents  of  the  public 
service ;  that  liability  attaches,  no  matter  what  the  class  of  public 
service,  since  the  old  distinction  between  a  public  service  that  was 
responsible  for  its  management  and  a  public  service  that  was  not, 
has  been  definitely  abandoned ;  and  lastly,  that  the  Council  of 
State  admits  of  liability  to-day  even  for  police  acts.2 

1  A  complete  bibliography  and  analysis  of  the  decisions  of  the  Courts  will 
be  found  in  Baudry-Lacantinerie  and  Bnrde,  "Traite  des  obligations" 
(3d  ed.  1908),  Vol.  IV,  pp.  fi84  et  seq.  Cf.  notably  the  decisions  of  the 
Court  of  Cassation,  March  29,  1S97,  Sirey,  1898,  I,  p.  70  and  the  note  by 
Esmein;  Jan.  22,  1908,  reported  in  Dalloz,  1908,  I,  p.  217  and  the  note  by 
Josserand;  March  25,  1908,  Sirey,  1910,  I,  p.  17  and  the  note  by  Esmein. 

2  Cf.  Duguit,  "Traite  de  droit  constitutional",  Vol.  I,  pp.  253  et  seq., 
and  the  bibliography  and  cases  there  cited,  especially  Teissier,  "De  la 

128 


ClIAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC. 


[§44 


VI.     The  New  Conception  of  Property  as  a  Social 

Function 


§  44.  Property  conceived  as  Sub- 
jective Right  and  as  Social 
Function. 

§  45.  General  Economic  Need  met 
by  the  Legal  Theory  of 
Property. 

§  46.  Property  under  the  Individ- 
ualistic System. 

§  47.  Consequences  Rejected  To- 
day. 

§  48.     The  Owner's  Obligations. 


§  49.  The  Obligation  to  Cultivate 
Land. 

§  50.  The  Tax  on  Unearned  In- 
crement. 

§  53.  Modern  Doctrine  of  Use  of 
Property. 

§  52.  The  Doctrine  as  to  Misuse  of 
Property. 

§  53.  French  Act  of  Jan.  2,  1907, 
relating  to  Churches. 


§  44.  Property  ceasing  to  be  a  Subjective  Right  of  the  Owner, 
and  becoming  a  Social  Function  of  the  Possessor.  —  The  classical 
jurists  will,  perhaps,  find  a  contradiction  in  the  title  "  Property  as 
a  Function."  They  believe  that  of  itself  and  by  definition  prop- 
erty is  a  determinate  thing  in  the  law ;  that  it  is  necessarily  and 
always  that  determinate  thing,  and  that,  if  it  ceased  to  be  so,  it 
would  no  longer  be  property.  I  have  already  expressed  my  opinion 
of  this  "  a  priori  "  and  dogmatic  method  of  viewing  the  law;  if  I 
call  it  again  to  your  attention  it  is  because  that  method  has  as- 
serted itself  and  is  still  asserting  itself  in  the  law  of  property  more 
than  in  any  other  field. 

It  is  not  denied  that  property  grew  up  in  the  law  to  answer  an 
economic  need  (as  indeed  is  true  of  all  law)  and  that  it  necessarily 
is  developing  along  with  those  economic  needs.  But  in  modern 
communities  the  economic  need  which  was  answered  by  the  law 
of  property  is  undergoing  a  profound  alteration.  Here,  too,  the 
evolution  is  in  a  social  sense ;  its  direction  is  being  determined  by 
an  ever-stricter  interdependence  of  the  various  elements  that  com- 
pose the  social  community.  In  this  way  property  is  socialized,  if 
I  may  use  the  term.  That  does  not  mean  that  it  is  becoming 
collective  in  the  economic  sense.  It  means  two  things  :  first,  that 
private  ownership  is  ceasing  to  be  a  private  right  and  becoming  a 
social  function ;   and  second,  that  those  instances  of  the  applica- 


responsabilite  de  l'Etat ",  in  "Repertoire  de  droit  administratif  "  ;  Tirard, 
"La  responsabilite  de  la  puissance  publique"  (1905) ;  Marcq,  "La  respon- 
sabilite de  la  puissance  publique"  (1911);  Michoud,  "Theorie  de  la 
personnalite  morale"  (1909),  Part  II,  pp.  260  et  seq. ;  the  following 
decisions  of  the  French  Council  of  State:  Feb.  10,  1905,  case  of  Tomaso 
Grecco,  reported  in  the  "Recueil",  p.  140  and  in  Sirey,  1905,  III,  p.  113, 
with  the  interesting  opinion  of  Romieu  and  a  note  by  Haurinu;  Dec.  24, 
1909;  case  of  Pluchard,  reported  in  the  "Recueil",  p.  1029,  and  in  the 
"Revue  du  droit  public"  (1910),  p.  83,  with  a  note  by  Jeze. 

129 


§  44]  PART   I      READJUSTMENT    OF   LAW  [Chap.    Ill 

tion  of  wealth  to  collective  uses  which  should  be  legally  protected, 
are  becoming  more  and  more  numerous.1 

I  should  add  an  important  limitation.  In  my  inquiry  I  shall 
consider  exclusively  what  economists  call  capitalistic  property, 
and  not  property  in  objects  destined  for  consumption.  The 
latter  presents  an  altogether  different  character,  and  it  would  not 
be  true  to  say  that  it  is  undergoing  a  social  evolution.  As  to 
capitalistic  property,  however,  I  shall  speak  of  all  classes,  per- 
sonalty as  well  as  realty.  In  both  these  classes  the  evolution  is 
the  same.  It  appears,  however,  in  perhaps  a  more  striking  manner 
in  the  case  of  realty  and  for  that  reason  it  shall  serve  as  my  example. 

In  the  Argentine  Republic,  the  evolution  of  property  is  certainly 
not  so  far  advanced  as  in  Europe,  above  all  that  of  rights  in  land. 
Perhaps  I  might  characterize  the  point  to  which  the  Argentine  law 
has  at  present  reached  as  the  stage  of  ownership-as-a-speculation ; 
but  it  will  be  followed,  perhaps  at  a  not  far  distant  period,  by  the 
state  of  ownership-as-a-f unction ;  since  the  evolution  of  nations, 
particularly  of  Latin  nations  that  have  reached  a  like  plane  of 
civilization,  is  similar. 

§  45.  General  Economic  Need  met  by  the  Legal  Theory  of 
Property.  —  To  what  economic  need  did  the  law  of  property  in  a 
general  way  answer?  A  very  simple  need  and  one  apparent  in 
every  society  :  the  need  of  applying  certain  wealth  to  definite  individ- 
ual or  collective  uses,  and  consequently  the  necessity  that  society 
guarantee  and  protect  that  application.  What  is  required  to 
accomplish  this  ?  Two  things :  first,  as  a  general  rule,  every  act 
which  conforms  with  one  of  these  uses  must  be  sanctioned ;  and 
second,  all  acts  contrary  to  them  must  be  restrained  by  society. 

The  social  instrumentality  developed  to  attain  this  double  end 
is  property,  in  the  legal  sense  of  the  word.  To  ask  what  is  the 
legal  conception  of  property,  is  to  inquire  what  the  conception  is 
on  which  rests  that  social  instrumentality  whose  object  is  to  protect 
the  application  of  wealth  to  individual  or  collective  uses,  sanction- 
ing acts  done  in  accordance  with  this  purpose  and  restraining 
acts  done  contrary  to  them. 

§  46.  Property  under  the  Individualistic  System.  —  How  have 
the  codes  founded  on  the  individualistic  principle  developed  this 

1  The  evolution  which  I  propose  to  describe,  is,  I  think,  much  less  ad- 
vanced in  the  countries  of  South  America  than  of  Europe,  particularly 
France  and  England.  I  shall  speak  from  the  French  point  of  view.  [See 
the  work  of  Ely,  "Property  and  Contract  in  their  Relation  to  the  Distribu- 
tion of  Wealth"  (2  vols.,  N.  Y.,  1914),  for  a  full  discussion  of  the  theory 
of  property  as  a  social  function.  —  Ed.] 

130 


CHAP.    Ill]       CHANGES   IN    CONTRACT,    PROPERTY,    ETC.  [§  47 

social  instrumentality?  Very  simply.  In  the  first  place,  those 
who  drafted  the  codes  were  not  concerned  with  inquiring  into  the 
legality  of  property  rights  then  in  fact  existing,  nor  with  deter- 
mining on  what  they  were  founded.  They  accepted  existing  facts 
and  declared  them  inviolable.  Furthermore,  being  profoundly 
individualistic,  they  had  in  mind  only  the  application  of  wealth  to 
individual  ends,  for  this  is  the  very  fulfilment,  the  very  cornerstone, 
as  it  were,  of  individual  autonomy.  They  did  not,  and  have  not 
since,  been  able  to  understand  anything  but  a  protection  thrown 
about  the  individualistic  use  of  property.  They  believed  that  the 
only  way  of  protecting  such  a  use  was  to  endow  the  holder  with  a 
subjective  right,  absolute  in  duration  and  in  effect.  The  right 
attached  to  the  thing  appropriated,  and  the  duty  corresponding  to 
this  right  rested  on  all  persons  other  than  the  owner  of  the  thing. 
In  a  word,  they  adopted  the  rigid  legal  construction  of  the  Roman 
"dominium." 

The  declarations  of  principles  which  created  this  system  are 
well  known ;  I  have  already  quoted  them.  Article  17  of  the 
"  Declaration  of  the  Rights  of  Man  "  of  1789  begins :  "  Property 
being  a  sacred  and  inviolable  right  ",  etc. ;  Article  17  of  the  Argen- 
tine Constitution  declares  that :  "  Property  is  inviolable  ...  ;  " 
Article  544  of  the  Napoleonic  Code  gives  this  definition  :  "  Prop- 
erty is  the  right  of  enjoying  an  object  in  the  most  absolute  manner, 
etc.; "  Article  2506  of  the  Argentine  Civil  Code  is  still  more  explicit : 
"  Property  is  the  right  '  in  rem  '  by  which  a  thing  is  subjected  to 
the  will  and  the  acts  of  a  person."  This  last  definition  is  completed 
by  Article  2508  which  declares  that :  "  The  right  of  property  is 
exclusive.  Two  persons  may  not  each  have  the  right  of  ownership 
to  the  whole  thing.  ..." 

These  texts  illustrate  very  well  the  absolute  and  exclusive  quality 
of  property,  and  the  idea  of  ownership  as  a  right,  which  is  a  part  of 
the  individualistic  conception.  The  right  of  property  is  the  perfect 
manifestation  of  the  autonomy  of  the  human  will,  and  of  the 
sovereignty  of  the  individual,  just  as  the  legislative  authority  is 
the  perfect  manifestation  of  the  sovereignty  of  the  State.  And, 
indeed,  "  dominium  "  and  "  imperium  "  are  two  legal  conceptions 
from  the  same  source  that  always  move  parallel.1 

§  47.  Consequences  Rejected  To-day.  —  The  consequences  of  the 
conception  of  property  as  a  right  are  well  known ;  it  will  be  well, 
however,  to  recall  the  principal  ones. 

1  Cf.  Duguit,  "Le  droit  social,  le  droit  individuel"  (2d  ed.  1911),  pp. 
17  et  seq. 

131 


§  47]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

In  the  first  place,  the  owner,  having  the  right  to  use,  benefit  by, 
and  to  dispose  of  the  thing  which  is  the  object  of  his  ownership, 
has,  for  like  reasons,  the  right  not  to  use  it,  not  to  derive  benefit 
from,  and  not  to  dispose  of  it ;  consequently  to  leave  his  lands  un- 
cultivated, his  city  lots  unimproved,  his  houses  untenanted  and 
unrepaired,  his  capital  consisting  of  personal  property  unproduc- 
tive. 

The  right  of  property  is  absolute.  It  is  absolute  even  as  against 
public  authority,  which  can,  indeed,  place  upon  it  certain  restric- 
tions of  a  police  nature,  but  cannot  lay  hands  upon  it,  save  after 
paying  a  just  indemnity.  It  is  absolute  in  so  far  as  it  affects  individ- 
uals and,  in  the  words  of  Baudry-Lacantinerie,  the  owner  "  may 
lawfully  perform  upon  the  object  of  his  ownership  acts  even  though 
he  have  no  demonstrable  interest  in  performing  them",  and  if  in 
so  doing  he  injures  another  party,  "  he  is  not  liable,  because  he  is 
but  acting  within  his  right."  1 

The  right  of  ownership  is  also  absolute  in  duration.  Upon  this 
attribute  is  based  the  right  of  transmitting  property  by  will, 
because  the  owner  or  title-holder  of  an  absolute  right  has.  logically 
the  power  of  disposing  of  his  property  both  during  his  life  and  also 
for  a  time  after  his  death. 

It  is  easy  to  show  that  as  a  matter  of  fact  none  of  these  conse- 
quences represents  the  truth ;  at  least  in  certain  countries,  notably  in 
France.  To  be  less  categorical,  I  will  say  that  the  entire  individ- 
ualistic system  of  property  law  is  disappearing.  This  assertion 
is  not  unfounded ;  it  is  based  upon  a  direct  observation  of  facts, 
for  both  in  statutory  and  in  case-law  there  is  appearing  a  body  of 
principles  directly  opposed  to  the  consequences  of  the  individualis- 
tic system.  Is  this  not  proof  that  the  legal  system  from  which 
those  consequences  spring  is  breaking  down  and  disappearing  ? 

The  general  causes  of  this  disappearance  are  again  those  that 
we  have  studied  above,  which  are  determining  the  direction  of  the 
general  transformation  of  individualistic  institutions. 

First,  property,  as  a  subjective  right,  is  a  purely  metaphysical 

1  Baudry-Lacantinerie,  "Droit civil"  (10th  ed.,  190S),  Vol.  I,  No.  1296, 
p.  726.  1  should,  however,  add  that  this  statement  is  not  found  in  the- 
11  tli  ed.  published  in  collaboration  with  Cheneaux  (1912),  Xo.  1296,  p.  738. 
Bui  Cheneaux  declares  thai  the  owner  "enjoys  the  object  as  he  pleases  and, 
if  lie  desires,  in  an  abusive  manner."  Baudry's  collaborators  have  been 
far  less  categorical  regarding  property  as  an  absolute  right.  Chauveau, 
"  l)es  biens",  No.  215,  writes  :  "  In  spite  of  its  absolute  character,  owner- 
ship must  still  be  circumscribed  within  reasonable  limits."  Barde,  "Des 
obligations",  Vol.  IV,  no.  2855,  p.  342,  says:  "The  truth  is  that  there  is 
no  absolute  right  and  that  ownership  itself  is  not  an  absolute  right  but 
subjeH   to  liinit;il  ions." 

132 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  48 

conception,  in  radical  opposition  to  modem  positivism.  To  say- 
that  the  possessor  of  capital  has  a  right  over  it,  is  equivalent  to  say- 
ing that  he  has  a  power,  of  itself  superior  to,  and  prescribable  upon, 
the  will  of  other  individuals.  The  "  dominium  "  of  the  individual 
is  no  more  intelligible  as  a  right  than  the  "  imperium  "  of  the 
Government  as  the  seat  of  force. 

Furthermore,  the  individualistic  system  of  property  is  breaking 
down  because  it  tends  to  protect  individual  uses  alone,  which  are 
considered  as  sufficient  in  themselves.  The  system  reflected  per- 
fectly the  individualistic  conception  of  the  society  of  the  period. 
It  found  a  perfect  medium  of  expression  in  Article  2  of  the  "  Dec- 
laration of  Rights  of  Man  "  of  1789  :  "  The  aim  of  every  political 
association  is  the  preservation  of  the  natural  and  imprescriptible 
rights  of  man.  These  rights  are  :  liberty,  property,  security,  and 
resistance  to  oppression."  If  the  application  of  wealth  to  private 
uses  was  protected,  it  was  solely  out  of  consideration  of  the  indi- 
vidual ;  it  was  solely  the  utility  to  the  individual  that  was  kept  in 
view.  To-day  there  is  a  very  clear  sense  abroad  that  the  individual 
is  not  the  end  but  the  means ;  that  the  individual  is  only  a  wheel 
of  a  huge  mechanism,  the  body  social ;  and  that  his  only  reason  to 
exist  is  the  part  which  he  performs  in  the  labor  of  society.  The 
individualistic  system  is  seen,  therefore,  to  be  in  open  opposition 
to  the  temper  of  the  modern  conscience. 

Finally,  the  individualistic  system  of  property  is  vanishing 
because  it  was  developed  solely  to  protect  the  application  of 
wealth  to  individual  interests,  and  therefore  was  useless  in  pro- 
tecting its  application  to  collective  purposes.  This  reason  also 
involves  the  problem  of  collective  personality  which  we  have  al- 
ready studied. 

§  48.  The  Owner's  Obligations.  —  Such  is  the  basis  of  the  new 
conception  of  property.  In  modern  life,  where  a  deep  and  well- 
defined  consciousness  of  social  interdependence  has  become  domi- 
nant, liberty  has  been  transformed  into  a  duty  of  the  individual  to 
employ  his  physical,  intellectual,  and  moral  forces  to  enrich  this 
interdependence.  In  just  the  same  way  property  has  become  for 
its  possessor  an  objective  duty  or  obligation  to  employ  his  wealth  to 
support  and  enlarge  social  interdependence. 

Every  individual  is  under  an  obligation  to  perform  a  certain 
(unction  in  the  community,  determined  directly  by  the  station 
which  he  occupies  in  it.  The  possessor  of  wealth,  by  reason  simply 
of  his  possession,  is  enabled  thereby  to  accomplish  a  certain  work 
where  others  can  not.     He  alone  can  increase  the  general  stock  of 

133 


§  48]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

wealth  by  putting  his  capital  to  use.  For  social  reasons  he  is 
under  a  duty,  therefore,  to  perform  this  work  and  society  will 
protect  his  acts  only  if  he  accomplishes  it  and  in  the  measure  in 
which  he  accomplishes  it.  Property  is  no  longer  a  subjective  right 
of  the  owner ;   it  is  the  social  function  of  the  possessor  of  wealth. 

Again,  it  was  Auguste  Comte  who  in  the  1800  s  first  gave  prom- 
inence to  this  idea.  In  1850  he  wrote  "  In  any  normal  phase  of 
human  history,  each  citizen  really  is  a  public  officer,  whose  func- 
tions, more  or  less  clearly  defined  as  the  case  may  be,  determine 
both  his  obligations  and  his  powers.  This  universal  principle 
should  certainly  be  extended  to  property ;  for  property  is  preem- 
inently a  field  where  positivism  discovers  an  indispensable  social 
function,  namely,  to  procure  and  administer  the  capital  by  which 
each  generation  prepares  the  work  of  the  succeeding  generation. 
Wisely  understood,  this  normal  view  of  the  use  of  wealth  ennobles 
it  without  curtailing  any  reasonable  liberty  as  to  its  exercise ; 
indeed  it  even  increases  respect  for  it."  :  To-day,  be  it  noted,  the 
most  ardent  defenders  of  individual  ownership,  the  extreme 
orthodox  economists,  are  themselves  obliged  to  admit  that,  if  the 
application  of  wealth  to  individual  uses  is  protected,  it  is  above  all 
because  it  benefits  society.  Like  Auguste  Comte,  Courcelle- 
Seneuil  speaks  of  the  social  function  of  the  merchant,  the  owner, 
and  the  capitalist.2  Law  no  longer  protects  the  so-called  subjec- 
tive right  of  the  owner.  It  guarantees  to  the  possessor  of  wealth 
the  liberty  to  fulfil  the  social  task  incumbent  upon  him  by  reason 
of  his  wealth.     Property  especially,  then,  is  being  socialized. 

I  am  anxious  to  avoid  being  misunderstood  in  this  matter.  I 
do  not  say,  and  I  have  never  said  or  written,  that  private  ownership 
as  an  economic  institution  is  disappearing  or  should  disappear. 
I  maintain  merely  that  the  legal  notion  upon  which  protection  of 
property  is  founded  is  being  modified.  Individual  ownership, 
nevertheless,  continues  to  be  protected  against  all  attacks,  even 
those  of  the  State.  I  will  go  even  further  and  say  that  it  is  more 
strongly  protected  under  the  new  than  under  the  old  conception. 

I  accept  also  as  a  fact  the  possession  of  capitalistic  wealth  by  a 
limited  number  of  individuals.  There  is  no  need  to  criticize  or 
justify  the  fact ;    it  would,  indeed,  be  labor  lost,  for  the  reason 

1  Auguste  Comte,  "Systeme  de  politique  positive"  (ed.  1892),  Vol.  I,  p. 
156.  Cf.  also  on  the  question  of  the  social  use  of  property:  Landry,  "  De 
Futility  sociale  de  la  propriete  individuelle"  (1901);  Hauriou,  "Principes 
de  droit  public"  (1910),  p.  39. 

2  Leon  Say,  "  Dictionnairo  d'economie  politique"  under  the  hea 
"Propriete." 

134 


Chap.    IIIJ       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  49 

that  it  is  a  fact.  Nor  shall  I  inquire  whether  (as  certain  schools  of 
thought  assert)  there  is  an  irreconcilable  conflict  between  those 
who  possess  wealth  and  those  who  do  not,  between  capital  and 
labor,  and  whether  in  this  conflict  capital  is  to  be  despoiled  and 
annihilated.  I  can  not  refrain,  however,  from  voicing  the  opinion 
that  these  schools  take  an  altogether  erroneous  view.  The  struc- 
ture of  modern  society  is  not  so  simple.  In  France  in  particular, 
many  persons  are  both  capitalists  and  laborers.  It  is  a  crime  to 
preach  the  struggle  of  classes ;  I  believe  that  we  are  moving,  not 
toward  the  destruction  of  one  class  by  another,  but  towards  a 
society  where  there  will  be  a  coordination  and  a  hierarchy  of  classes. 

§  49.  The  Obligation  to  Cultivate  Land.  —  The  conception  of 
property  as  a  function,  and  the  idea  of  society  extending  its  protec- 
tion to  the  application  of  wealth  to  certain  uses,  provide  a  very 
simple  and  clear  explanation  of  the  laws  and  decisions  which  are 
repugnant  to  the  conception  of  property  as  a  right. 

An  objection  has  been  repeatedly  raised  to  this  explanation. 
Opponents  have  argued  :  "  We  understand  your  view ;  we  even 
admit  that  society  is  moving  toward  a  system  of  law  in  which  the 
right  of  property  will  rest  upon  the  duty  of  the  owner  to  fulfil  a 
certain  function.  But  we  have  not  yet  reached  that  state ;  and 
the  proof  is  that  no  statute  yet  imposes  upon  an  owner  the  obliga- 
tion to  cultivate  his  field,  repair  his  house,  or  utilize  his  capital. 
And  yet  that  is  the  necessary  and  logical  consequence  of  the  con- 
ception of  property  as  a  function."  x 

The  objection  does  not  embarrass  me.  From  the  fact  that  the 
law  does  not  yet  directly  force  the  owner  to  cultivate  his  land  or 
repair  his  houses  or  utilize  his  capital,  it  cannot  be  concluded  that 
the  idea  of  social  function  has  not  yet  supplanted  the  idea  of  a 
subjective  right  of  property.  Such  a  law  has  indeed  not  made  its 
appearance,  because  the  need  for  it  has  not  yet  been  felt.  In 
France,  for  example,  the  amount  of  land  left  uncultivated  by  the 
owner  or  the  number  of  houses  which  are  unproductive  is  insignifi- 
cant in  comparison  to  the  total  capital  in  real  estate  which  is  being 
worked.  But  the  fact  that  the  question  of  such  a  law  has  been 
raised  is  itself  evidence  of  the  transformation  that  has  taken  place. 
Fifty  years  ago  such  a  question  was  in  no  man's  mind ;  to-day  it  is 
everywhere  agitated.  And  if,  in  a  country  like  France,  the  time 
should  come  when  the  non-cultivation  of  the  land  became  a  serious 
problem,  no  one  would  then  deny,  certainly,  the  justification  of 
intervention  by  legislation.  As  to  the  non-employment  or  hoard- 
1  Cf.  notably  Jhze,  "Revue  du  droit  public"  (1909),  p.  193. 

135 


§  49]  PART    I      READJUSTMENT   OF   LAW  [Chap.    Ill 

ing  of  capital  consisting  of  personalty,  the  legislator  will  have 
difficulty  in  his  attack.  However,  it  cannot  be  doubted  but  that, 
were  he  able  to  discover  the  unproductive  accumulation,  he  should 
prohibit  and  prevent  it.1 

In  those  countries  which  are  still  (as  I  expressed  it  a  while  ago) 
in  the  stage  of  ownership-as-a-speculation,  the  problem  of  the 
non-cultivation  of  the  land  is  arising.  And  that  proves  that  even 
in  these  countries  the  conception  of  property  as  a  right  tends  to 
disappear.  Are  those  who  buy  vast  tracts  of  land  at  a  relatively 
low  price  and  allow  them  to  lie  idle  for  years  while  the  natural 
increment  of  value  in  the  land  returns  them  an  enormous  profit,  — 
are  they  not  guilty  of  conduct  which  should  be  prohibited  ?  If  the 
law  intervened  to  prohibit  this,  its  policy  could  hardly  be  ques- 
tioned. But  such  a  policy  is  very  far  distant  from  the  conception 
of  an  inviolable  right  of  property,  implying  in  the  owner  the  right 
to  act  or  to  remain  passive  at  pleasure. 

§  50.  The  Tax  upon  Unearned  Increment,  in  England  and  Ger- 
many. —  Though  less  rapid  than  in  the  countries  of  South  America 
and  especially  the  Argentine  Republic,  the  automatic  rise  in  land 
values  in  rural  and  urban  districts,  independent  of  any  labor  spent 
upon  them,  is  taking  place  all  over  Europe.  So  long  as  the  con- 
ception of  property  as  a  right  held  sole  dominion,  excluding  all 
other  conceptions,  the  question  of  touching  directly  or  indirectly 
this  increment,  which  is  due  to  no  act  of  the  owner  but  in  spite  of 
his  inactivity,  did  not  arise.  To-day,  however,  this  question  is 
raising  its  head  everywhere,  and  in  two  countries  (certainly  of  no 
little  importance) ,  England  and  Germany,  a  duty  has  just  been  laid 
upon  the  unearned  increment  of  land. 

1  In  his  "Principes  de  droit  public"  (1910),  p.  38,  Hauriou  says  very 
justly  :  "And  finally  we  reach  the  most  individualistic  of  individual  rights, 
the  right  of  private  property.  The  element  of  function  is  hidden  within 
it.  .  .  .  Certainly  the  owner  is  not  now  bound  to  cultivate  his  land ; 
but  we  count  upon  frequent  transfers  of  ownership.  .  .  .  We  know  that 
if  one  owner  does  not  cultivate  his  land  the  next  owner  will,  and  that  it 
will  be  in  the  interest  of  a  very  great  majority  to  cultivate.  .  .  .  Every- 
thing has  been  skilfully  calculated  that  the  economic  function  of  ownership 
might  be  assured  by  the  simple  play  of  liberty.  But,  if  some  day  it 
becomes  clear  that  the  cultivation  is  not  thereby  secured  in  sufficient 
proportion,  there  is  no  doubt  that  a  legal  obligation  to  perform  that  func- 
tion under  penalty  of  expropriation  would  be  forthcoming."  Hauriou 
correctly  instances  how  such  an  obligation  exists  in  colonial  grants  of 
land,  and  also  in  mining  concessions  which  endure  only  during  the  period 
of  actual  working.  This  is  in  fact  illustrated  by  Article  49  of  the  Act  of 
April  21,  1810,  and  Article  10  of  the  Act  of  April  27,  1837.  The  scope  of 
these  provisions  has  indeed  been  questioned ;  but  the  obligation  to  exer- 
cise the  grant  is  certainly  formally  recognized  and  strongly  sanctioned  by 
the  bill  which  has  now  been  before  the  Chamber  of  Deputies  for  several 
years. 

136 


CHAP.  Ill]   CHANGES  IN  CONTRACT,  PROPERTY,  ETC.        [§  50 

In  England,  the  Finance  Act  of  1910  provides  by  Article  1  for 
the  establishment  of  a  tax  called  an  "  increment  value  duty  " : 
"  Subject  to  the  provisions  of  this  Part  of  this  Act,  there  shall  be 
charged,  levied  and  paid  on  the  increment  value  of  any  land  a  duty, 
called  increment  value  duty,  at  the  rate  of  one  pound  for  every 
complete  five  pounds  of  that  value  accruing  after  the  thirtieth  day 
of  April,  1909.  .  .  ."  *  By  Article  13,  upon  the  expiration  of  every 
lease,  a  duty  is  charged  upon  the  value  of  the  benefit  accruing  to 
the  lessor.  It  is  called  "  reversion  duty  ",  and  amounts  to  one 
pound  for  every  complete  ten  pounds  of  that  value.  But  that  is 
not  all.  The  same  English  Act  attacks  the  inactive  land  owner 
and  levies  a  special  duty  upon  the  site  value  of  undeveloped  lands. 
It  provides  (Article  16)  :  "  Subject  to  the  provisions  of  this  Part 
of  this  Act,  there  shall  be  charged,  levied  and  paid  for  the  financial 
year  ending  the  thirty-first  day  of  March,  1910,  and  every  subse- 
quent financial  year  in  respect  of  the  site  value  of  undeveloped  land, 
a  duty,  called  undeveloped  land  duty,  at  the  rate  of  one  halfpenny 
for  every  twenty  shillings  of  that  site  value."  2 

In  Germany,  the  duty  upon  unearned  increment,  created  by 
Paragraph  90  of  the  Act  of  July  15,  1909  (Imperial  Revenue  Law),3 
was  regulated  by  the  Act  of  February  14,  191 1.4  According  to  this 
Act,  an  appraisal  of  the  increment  of  the  land  value  is  made  and  a 
proportion  of  the  increment  is  taken  as  a  tax  at  the  moment  of 
every  transfer  for  a  consideration  of  real  estate  "  inter  vivos  "  with 
the  exception  of  certain  privileged  grants.     Only  the  unearned 

1  10  Edw.  VII,  Chap.  8,  Art.  I;  "Law  Reports,  Statutes",  Vol.  48 
(1910),  p.  10. 

2  Ibid.,  p.  20.  Cf.  the  interesting  article  by  W.  Oualid  :  "  L'imposition 
des  plus- values  foncieres  en  Angleterre",  in  "Revue  de  science  et  de  legisla- 
tion financiere"  (1910),  pp.  389  et  seq. ;  cf.  also  the  speech  by  Mr. 
Lloyd-George,  Chancellor  of  the  Exchequer,  April  29,  1909,  in  the  House 
of  Commons,  analyzed  in  detail  in  the  "Bulletin  de  statistiques  et  de 
legislation  comparee"  (1909),  Vol.  II,  pp.  593,  595.  He  said  :  "The  owner 
of  valuable  land  which  is  required  or  likely  in  the  near  future  to  be  required 

.  for  building  purposes,  who  contents  himself  with  an  income  therefrom 
wholly  incommensurate  with  the  capital  value  of  the  land  in  the  hope  of 
recouping  himself  ultimately  in  the  shape  of  an  increased  price,  is  in  a 
similar  position  to  the  investor  in  securities  who  re-invests  the  greater 
part  of  his  dividends.  But  while  the  latter  is  required  to  pay  income  tax 
both  upon  the  portion  of  the  dividends  employed  and  also  upon  the  portion 
re-invested,  the  former  escapes  taxation  upon  his  accumulating  capital 
altogether,  and  this,  although  the  latter  by  his  self-denial  is  increasing  the 
wealth  of  the  community,  while  the  former,  by  withholding  from  the  mar- 
ket land  which  is  required  for  housing  or  industry,  is  creating  a  speculative 
inflation  of  values  which  is  socially  mischievous."  Cf.  "Official  Report," 
Parliamentary  Debates,  Commons  (1909),  Vol.  IV,  p.  539. 

3  Reichsstempelgesetz. 

4  For  a  French  translation  of  the  text  of  this  law,  see  "Bulletin  de 
statistique  et  de  legislation  comparee"  (1911),  I,  pp.  339  and  442. 

137 


§  51]  PART    I      READJUSTMENT   OF   LAW  [Chap.    Ill 

increment,  or  that  arising  out  of  no  act  of  the  owner,  is  touched. 
Interesting  details  concerning  this  duty  will  be  found  in  the  articles 
of  W.  Oualid.1  He  very  justly  distinguishes  the  reasons  leading  to 
the  English  law  and  the  German  law.  In  England  the  duty  upon 
the  increment  of  land  values  has  been  regarded  chiefly  as  a  means 
of  economic  and  social  reform  ;  in  Germany  the  theoretical  princi- 
ple has  been  invoked  in  its  support,  but  the  real  cause  of  the  Act 
was  to  staunch  the  deficit  in  the  Imperial  budget. 

It  will  not  be  unprofitable  to  compare  these  laws  with  a  French 
Act,  little  known  and  rarely  if  ever  applied.  The  Act  of  Sep- 
tember 16,  1807,  Article  30,  permits,  where  land  benefits  by  a  pub- 
lic undertaking,  of  the  recovery  from  the  owner  thereof  of  a  part 
of  the  increment  due  to  the  undertaking.  It  says :  "  When  as  a 
result  of  the  undertaking  already  mentioned,  when  by  the  open- 
ing of  new  streets  ...  or  by  any  other  public  work  of  a  general 
nature,  or  of  the  Department  or  Municipality,  ordered  or  ap- 
proved by  the  Government,  private  owners  shall  have  benefited 
by  a  marked  increase  in  the  value  of  their  lands,  such  lands 
may  be  charged  with  the  payment  of  an  indemnity  as  high  as 
one  half  the  benefit  accruing  to  them."  2 

§  51.  Modern  Doctrine  as  to  Use  of  Property.  —  This  objection 
answered,  it  is  an  easy  task  to  define  what  I  shall  call  the  scope  of 
the  conception  of  property  as  a  function,  and  to  show  that  the  prop- 
ositions in  which  it  may  be  formulated  fit  perfectly  with  the  late 
cases  and  laws.  By  reference  to  what  has  been  said  regarding  the 
fact  of  social  interdependence  and  the  division  of  labor,  I  come 
naturally  to  the  two  following  conclusions : 

1 .  The  owner  has  the  duty  and,  therefore,  the  power  to  employ 
his  wealth  to  satisfy  individual  needs  and  especially  his  own  needs, 
and  to  employ  his  wealth  for  the  development  of  his  physical, 
intellectual,  and  moral  forces.  It  should  not  be  forgotten  that  the 
development  of  the  division  of  labor  in  society  is  in  direct  propor- 
tion to  the  development  of  the  forces  of  the  individual. 

2.  The  owner  has  the  duty  and,  therefore,  the  power  to  employ 

1  "Revue  de  science  et  de  legislation  financiere"  (1910),  pp.  173  et  seq., 
and  (1911),  pp.  325  et  seq. 

2  Cf.  the  report  of  Bonnevay  made  to  the  Chamber  of  Deputies,  advising 
the  rejection  of  the  Act,  proposed  by  Carnaud  and  several  other  members 
(July  11,  1907),  to  assure  to  Municipalities  participation  in  the  increment 
of  land  values  resulting  from  public  improvements.  Bonnevay  declared, 
speaking  for  the  Committee,  that  the  terms  of  the  Act  of  September  16, 
1807,  Art.  30,  and  of  the  Act  of  May  3,  1841,  Art.  51,  were  amply  sufficient. 
Sec  "Journal  Offieiel,  documents  parlementaires",  Chamber  of  Deputies, 
extraordinary  session,  1909,  No.  2,  813,  p.  60. 

138 


Chap.    Ill]      CHANGES   IN   CONTRACT,    PROPERTY,    ETC.  [§  51 

his  property  to  the  satisfaction  of  the  needs  of  the  community,  the 
nation,  or  some  part  of  the  nation. 

Now,  my  first  proposition  is  that  the  owner  has  the  duty  and, 
therefore,  the  power  to  employ  his  wealth  to  satisfy  his  individual 
needs.  But  it  goes  without  saying  that  this  power  embraces 
only  those  acts  compatible  with  the  exercise  of  individual  liberty 
such  as  I  have  already  defined  it,  that  is  to  say,  with  the  free 
development  of  one's  individual  forces.  Acts  done  with  another 
purpose  than  that  of  public  usefulness  will  be  held  contrary  to  the 
law  of  property  and  give  reason  for  repression  or  indemnity. 

This  explains  very  simply  and  logically  those  rules  of  law  which 
recognize  and  sanction  the  prohibition  against  an  owner's  doing 
with  his  wealth  some  act  lacking  utility.  Modern  law  is  explain- 
able on  these  grounds,  without  resort  to  contradictory  and  irrele- 
vant doctines  of  the  "abuse  of  power  "  (discussed  later)  and  of  the 
limitation  of  the  right  of  property,  founded  upon  the  impossible 
distinction  between  a  normal  and  abnormal  use  of  that  right.  If, 
in  spite  of  the  serious  damage  it  causes  my  neighbor,  I  may  law- 
fully construct  upon  my  land  a  house  which  returns  me  a  revenue, 
it  is  because  I  employ  my  wealth  in  my  own  interest,  true ;  but 
also  for  a  purpose  beneficial  to  social  interdependence.  I  fulfil 
the  social  task  which  my  possession  of  that  land  enables  me  to  fulfil. 
I  secure  the  satisfaction  of  social  needs.  On  the  other  hand,  the 
Courts  have  very  correctly  held  that  I  may  not  be  allowed  to 
construct  a  screen-fence  on  my  land,  or  a  false  chimney  on  the 
roof  of  my  house,  or  to  excavate  without  purpose  in  my  garden, 
because,  in  doing  so,  I  perform  acts  without  utility  to  myself  or 
benefit  to  society. 

But,  it  will  be  objected,  it  is  not  the  useless  acts  that  are  in 
reality  prohibited ;  what  is  prohibited  is  the  injury  which  they 
cause  to  another.  Not  at  all ;  just  the  contrary.  If  the  damage 
caused  to  another  entails  reparation,  it  is  because  the  acts  are 
prohibited.  We  have  seen,  that  between  individuals  damage  does 
not  entail  reparation  unless  the  damage  is  imputable  to  a  wrongful 
act,  and  a  wrongful  act  is  nothing  else  than  a  violation  of  law.  The 
truth  is  that  when  the  acts  of  an  owner  are  without  usefulness  to 
himself  and  cause  injury  to  another,  the  law  prohibiting  those  acts 
is  enforced  by  reparation.  But  the  prohibition  exists  independ- 
ently ;  for  without  it  the  action  would  not  exist.  If  the  act  were 
not  prohibited,  it  would  not  be  unlawful ;  the  party  who  suffered 
the  injury  could  not  recover  damages. 

It  would  be  easy,  too,  to  show  that  the  general  idea  on  which  the 

139 


§  51]  PART    I      READJUSTMENT   OF   LAW  [Chap.    Ill 

new  legal  doctrine  of  property  is  based  tallies  with  the  principles 
laid  down  by  statutes  and  Courts,  principles  which  are,  further- 
more, in  open  contradiction  with  the  traditional  conception  of 
property. 

If  property  is  an  exclusive  right  over  a  thing,  the  owner  has  the 
right  to  prevent  a  third  party  from  performing  any  act  with  respect 
to  the  thing,  which  is  the  object  of  his  right,  even  though  it  be  an 
act  occasioning  him  no  damage  or  in  any  way  diminishing  his 
enjoyment  of  it.  Now,  in  several  countries,  notably  France, 
recent  laws  permit,  even  for  private  purpose,  and  without  its 
constituting  in  anyway  a  disseisin  or  expropriation,  and,  therefore, 
without  any  indemnity  being  due,  the  construction  of  telegraph 
and  telephone  lines  and  of  conductors  of  electrical  energy  over  pri- 
vate property.  Xo  damages  are  due  in  such  cases  unless  physical 
injury  results.  It  is  important  to  note  that  this  is  true  even  of 
private  lines  for  telegraph  or  telephone  or  for  conducting  electrical 
energy  to  private  factories.  The  Act  of  July  28,  1885,  relating 
to  the  construction  and  maintenance  of  telegraph  and  telephone 
lines,  and  the  Act  of  June  15,  1906,  concerning  the  distribution  of 
electrical  energy,  are  very  typical  of  the  new  development,  and 
illustrate  excellently  how  the  progress  of  science  is  every  day 
rendering  the  bonds  of  social  solidarity  stronger  and  giving  rise  to 
new  conceptions  in  law. 

I  should  add  that  the  question  has  been  raised  in  the  Courts 
whether  an  individual  can,  without  the  help  of  the  government, 
force  an  owner  to  permit  wires  conducting  energy  or  current  for 
electric  light  to  pass  over  his  house  or  land.  The  Courts  have  not 
yet  dared  to  go  that  far.1  But  the  simple  fact  that  the  question 
has  been  seriously  raised  shows  to  what  a  distance  we  have  departed 
from  the  old  conception  of  ownership  as  an  absolute  and  exclusive 
right,  and  from  its  application  as  seen  in  Section  1  of  Article  552 
of  the  Napoleonic  Code,  which  declares  that :  "  The  ownership 
of  the  soil  includes  the  ownership  of  what  is  above  and  below." 

§  52.  The  Doctrine  as  to  Misuse  of  Property.  —  Let  us  now 
return  for  a  moment  to  consider  the  modern  development  of  the 
principle  of  "misuse  of  right."2 

As  early  as  1855,  it  wras  decided  that  "  if  in  principle  the  right  of 
property  is  a  right  in  a  sense  absolute,  authorizing  the  owner  to  use 
and  abuse  the  object  of  his  ownership,  nevertheless  the  exercise 

1  Cf.  Tribunal  of  Bordeaux,  November  27,  1908,  reported  in  Sirey,  1910, 
Part  II,  p.  230. 

2 ':  Abus  de  droit." 

140 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  52 

of  that  right,  like  any  other,  must  be  limited  to  the  satisfaction  of  a 
serious  and  lawful  interest."  l  So  an  owner  was  ordered  to  take 
down  a  blind  wall  which  he  had  erected  on  his  land,  the  Court 
saying :  "...  X  can  not  without  '  abusing  his  right  '  maintain  a 
blind  wall  presenting  no  utility  to  himself  and  serving  only  to  injure 
his  neighbors."  2  The  Court  of  Cassation  also  decided  that  an 
owner  may  not  make  excavations  on  his  land  when  they  are  without 
purpose  and  result  in  injury  to  his  neighbor.  It  said  "...  Art. 
544  gives  to  each  one  the  right  of  enjoying  and  disposing  of  his 
property  in  the  most  absolute  manner  possible ;  this  right  is 
tempered  by  the  natural  and  legal  obligation  not  to  cause  any 
damage  to  another's  property ;  ...  it  has  been  proved  that  the 
work  of  drilling  carried  on  by  X  on  his  own  property  was  most 
injurious  to  the  springs  on  his  neighbor's  property  and  that  the 
drilling  could  not  benefit  his  own  spring.  .  .  ."  3 

The  classic  individualists  have  vigorously  maintained  the  prin- 
ciple of  property  as  an  absolute  right,  and  have  criticized  these 
decisions  of  the  Courts.  Baudry-Lacantinerie,4  especially,  says : 
"  By  constructing  a  wall  on  my  land,  which  is  free  from  any 
servitude,  I  close  the  view  which  the  house  of  my  neighbor  en- 
joyed over  the  country ;  I  owe  no  indemnity  because  I  only  make 
use  of  my  right :  '  Neminem  laedit  qui  suo  jure  utitur.'  "  Others, 
though  hesitatingly,  have  accepted  the  idea  of  a  limitation  to  the 
right  of  property.  But  to  limit  the  right  of  property  save  in  the 
case  of  easements  in  benefit  of  the  public  is  a  grave  matter.  Is  it 
not  destroying  the  right  itself?  Then,  too,  upon  what  is  this 
limitation  to  be  based,  how  is  it  to  be  measured  ? 

These  difficulties  have  raised  discussions  and  academic  distinc- 
tions which  have  resulted  in  nothing.  This  was  inevitable.  On 
the  one  hand,  property  was  defined  as  the  right  of  enjoying  and 
disposing  of  a  thing  at  pleasure  and  on  the  other  hand  it  was 
declared  that  this  pleasure  was  limited.  Furthermore,  to  explain 
the  cases  (which  are  the  sure  expression  of  the  present  state  of  the 
law),  it  is  not  enough  to  say  that  the  right  of  property  is  limited. 
If,  indeed,  the  right  of  property  merely  received  limitations,  the 
resulting  obligation  on  the  part  of  the  owner  would  be  to  abstain 
from  certain  acts  in  relation  to  the  thing.  Now,  it  is  not  merely 
an  obligation  to  abstain  which  is  imposed  upon  him  ;  there  are  also 

1  Court  of  Colmar,  May  2,  1855,  Dalloz,  1856,  II,  p.  9. 

2  Court  of  Gex,  Julv  27,  1900,  Sirey,  1901,  II,  p.  147. 
8  June  10,  1902,  Sirey,  1903,  I,  p.  12. 

4  "Droit  civil"  (9th  ed.),  II,  p.  424. 

141 


§  52]  PART   I      READJUSTMENT   OF   LAW  [Chap.    Ill 

affirmative  obligations.  He  must,  for  example,  take  certain  pre- 
cautions, and  if  he  does  not,  he  is  liable.  A  decision  of  the  Court  of 
Cassation  is  particularly  striking  in  this  respect.  It  says  :  "...  a 
manufacturer  who,  by  the  running  of  a  factory,  causes  an  injury 
to  his  neighbors  exceeding  that  which  is  measured  by  the  ordinary 
obligations  of  adjoining  owners,  is  at  fault  if  he  neglects  to  take 
those  precautions  necessary  to  prevent  those  injuries;  ...  it 
follows  that,  in  holding  the  contrary,  the  judgment  from  which  the 
appeal  has  been  taken  violated  Art.  1382  of  the  Civil  Code."  1  I 
do  not  say  that  this  decision  of  the  Court  of  Cassation  is  beyond 
criticism.  But  I  support  it  because  it  shows  that  the  Courts  do  not 
hesitate  to  admit  the  existence  of  affirmative  obligations  resting 
upon  the  owner. 

It  has  been  thought  that  these  contradictions  and  difficulties  are 
avoided  by  a  theory,  seductive,  certainly,  at  first  sight,  which  still 
enjoys  a  larger  credit.  It  has  been  adopted  by  the  civil  codes  of 
Germany  and  Switzerland ;  in  France  it  has  been  the  object  of 
very  scientific  study,  notably  by  Saleilles,  Josserand,  Ferron,  and 
Ripert.  The  German  Civil  Code  in  Article  226,  says :  "  The 
exercise  of  a  right  which  can  only  have  the  purpose  of  causing 
injury  to  another  is  unlawful ;  "  and  Art.  3,  Sect.  2  of  the  Swiss 
Civil  Code  declares  that :  "  The  law  does  not  protect  one  who 
clearly  misuses  his  right." 

I  admire  their  effort  to  construct  this  theory  of  the  "  misuse  of 
right."  But  it  can  not  succeed,  because  the  theory  contradicts 
itself  at  the  very  outset.  To  say  that  the  abusive  exercise  of  a 
right  is  not  permitted,  or  further,  that  the  law  does  not  protect  one 
who  clearly  misuses  his  right,  is  simply  saying  that  one  may  not  do 
something  that  one  has  not  the  right  to  do,  or  that  the  prerogatives 
belonging  to  a  given  right  are  being  exceeded.  There  is  nothing 
novel  in  that.  The  theory  of  the  "  misuse  of  right  "  contains  noth- 
ing specific  in  itself.  I  do  not  agree  with  Planiol 2  that  the  phrase 
"  '  abusive  exercise  of  rights  '  is  a  war  of  words."  But,  like  him, 
I  believe  that,  if  there  is  a  right,  it  ceases  where  the  misuse 
commences. 

The  truth  is  that  this  theory  or  at  least  this  phrase,  misuse  of 
right,  is  explained  by  its  history.  It  was  a  means  originated  by 
lawyers  to  avoid  the  consequences  which  logically  flowed  from  the 
absolute  character  of  the  right  of  property,  and  yet  to  maintain 
this  characteristic.     For  that  reason  the  theory  of  the  "  misuse  of 

1  February  18,  1907,  Dalloz,  1907,  I,  p.  385. 

2  "Droit  civil",  II,  871. 

142 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  52 

right  "  has  been  applied  only  to  the  right  of  property.  A  similar 
means  was  successfully  employed,  it  is  true,  to  subject  to  judicial 
control  the  so-called  "  discretionary  acts  "  of  government  adminis- 
trative officers.  The  "  imperium  "  of  the  government,  when  re- 
garded as  absolute,  justified  every  administrative  act  if  it  was  done 
in  proper  form  and  in  regular  course  by  the  officer  having  authority 
to  do  it,  regardless  of  the  purpose  back  of  the  act.  The  Council  of 
State  skilfully  introduced  the  theory  of  the  "  misuse  of  power."  * 
Little  by  little  "  misuse  of  power  "  has  been  confused  with  "  ex- 
ceeding one's  authority",  which  is,  indeed,  identical.  An  adminis- 
trative officer  exceeds  his  powers  in  both  cases,  whether  he  per- 
forms an  act  without  authority,  or  whether  he  performs  an  act 
outwardly  within  his  jurisdiction  but  with  another  purpose  than 
that  intended  when  the  authority  was  given  him.  The  "  misuse  of 
power  "  and  the  "  misuse  of  right  "  were  means  invented  to  coun- 
teract the  consequences  of  the  absolute  character  attributed  to 
"  imperium  "  and  "  dominium."  We  have  come  to  recognize  that 
misusing  one's  power  is  identical  with  exceeding  one's  power ;  we 
should  now  recognize  that  misusing  one's  right  of  property  and 
exceeding  the  limitations  placed  upon  one's  right  of  property  are 
identical.  That  is  why  the  theory  of  the  "  misuse  of  right  "  does 
not  explain  the  ground  of  the  liability  of  the  owner,  or  why  the 
advocates  of  this  theory  are  as  embarrassed  as  those  who  simply 
declare  that  the  right  of  property  itself  is  limited. 

The  "misuse  of  right "  is  best  represented  by  the  equation  formu- 
lated by  Ripert 2  and  also  by  Ferron.3  According  to  these  authors 
the  misuse  commences  when  an  individual  by  an  excessive  or  ab- 
norvial  development  of  his  activity,  or  liberty,  or  right  of  property 
obstructs  the  normal  development  of  the  liberty,  or  right  of  prop- 
erty of  another.  In  the  end,  then,  the  "  misuse  "  of  a  right  would 
be  the  abnormal  exercise  of  that  right.  It  remains  to  be  deter- 
mined what  the  normal  and  what  the  abnormal  exercise  of  a  right 
is  in  general,  and  in  particular  of  the  right  of  property.  Evidently 
this  is  not  easy;  I  would  say,  rather,  that  it  is  impossible.  The 
conception  of  the  normal  and  abnormal  in  sociology,  in  spite  of  the 
authority  of  Durkeim,  its  great  advocate,  can  lead  to  nothing.4 
According  to  this  eminent  sociologist,  the  normal  is  any  act  falling 

1  ["Detournement  de  pouvoir";    something  like  our  "ultra  vires." 
—Ed.] 

2  Court  of  Cassation,  February  18,  1907,  Dalloz,  1907,  I,  p.  385,  notes 
1,  2,  3. 

3  Court  of  Bordeaux,  December  14,  1903,  Sirey,  1905,  II,  p.  17,  note. 

4  "Les  regies  de  la  methode  sociologique"  (F.  Alean),  pp.  59  et  seq. 

143 


§  52]  PART    I      READJUSTMENT   OF    LAW  [Chap.    Ill 

within  the  mean  of  all  social  acts.1  But  then,  we  have  to  deter- 
mine the  basis  for  establishing  this  mean,  and  that  is  certainly 
impossible.  In  particular,  the  normal  manner  of  enjoying  wealth 
would  be  impossible  of  determination. 

§  53.  French  Act  of  1907  relating  to  Churches.  —  My  second 
proposition  was  that  the  possessor  of  wealth  has  the  duty  and, 
therefore,  the  power  to  employ  it  for  the  satisfaction  of  needs  com- 
mon to  a  whole  community,  large  or  small,  as  the  case  may  be,  or  in 
pursuit  of  a  purpose  interesting  a  group,  upon  the  condition,  of 
course,  that  the  purpose  is  lawful.  This  proposition  leads  to  the 
recognition  of  the  distinct  existence  of  the  fund  contributed  in 
common  by  an  organized  group  of  persons.  In  other  words,  the 
recognition  of  the  liberty  to  associate  and  to  establish  funds  for 
certain  uses.  This  does  away  with  all  the  subtle  and  useless 
controversies  over  collective  personality.2 

I  would  point  out  one  application  of  the  rule,  deserving  of  atten- 
tion, because  it  illustrates  at  close  range  how  the  new  conception 
of  property,  what  I  call  property  as  applied  to  certain  uses,  or 
ownership  without  an  owner,  is  supplanting  the  old  conception  of 
property  as  a  right.  The  change  is  seen  in  the  legal  consequence 
of  the  separation  of  the  Church  and  State  in  France,  a  consequence 
deserving,  indeed,  a  careful  study.  The  Law  of  Separation  of 
December  9,  1905,  recognized  that  the  property  of  the  Church 
belonged  to  the  State,  or  to  the  departments,  or  in  the  majority 
of  cases  to  the  municipalities,  but  that  its  use  should  be  left  for 
purposes  of  worship  to  those  religious  associations  which  were 
organized  for  such  purpose.  By  the  Papal  Encyclical  "  Vehemen- 
ter  nos  "  of  February  11,  1908,  and  by  the  Encyclical  "  Gravissimo 
officii  munere  "  of  August  10,  1906,  Pope  Pius  X  (for  reasons  which 
I  need  not  consider  here),  formally  forbade  the  Catholic  clergy  and 

1  Upon  the  "misuse  of  right",  besides  the  notes  of  Ripert  and  Ferron 
(supra,  p.  110,  notes  2  and  3,)cf.  especially  :  Teisseire,  "  Essai  d'une  theorie 
generale  sur  le  fondernent  de  la  responsabilite  "  (thesis,  University  of  Aix, 
1901);  Ripert,^  "De  l'exerciee  du  droit  de  propriete  dans  ses  rapports 
avec  les  proprietes  voisines",  (1902);  Charmont,  "L'abus  du  droit",  in 
"Revue  trimestrielle  de  droit  civil'  (1902),  pp.  113  et  seq.;  Josserand,ilDe 
l'abus  des  droits"  (1905) ;  Salansoii,  "De  l'abus  du  droit"  (thesis,  Univer- 
sity of  Paris,  1903) ;  Marc  Desserteaux,  "  Abus  de  droit  ou  eonflit  de  droits" 
in  "  Revue  trimestrielle  de  droit  civil"  (1906),  pp.  119  et  seq. ;  and  especially 
Saleilles,  "Rapport"  made  to  the  first  sub-commission  upon  the  revision 
of  the  Civil  Code,  in  "Bulletin  de  la  societe  d'etudes  legislatives"  (1905), 
pp.  329  et  seq.  A  decision  of  the  Civil  Court  of  Toulouse  of  April  13,  1905, 
declared  the  "misuse  of  right"  similar  to  the  "excess  of  authority"  ;  Dalloz, 
1906,  II,  p.  105  and  a  note  by  Josserand.  Cf.  Hayem,  "Essai  sur  le  droit 
de  propriete  et  ses  limites"  (1910),  especially  pp.  391  et  seq.,  and  pp.  423 
et  seq. 

2  Cf.  Topic  III. 

144 


CHAP.    Ill]       CHANGES    IN    CONTRACT,    PROPERTY,    ETC.  [§  53 

laymen  of  France  to  form  associations  for  purposes  of  worship.  As 
a  result  it  seemed  as  though  the  State  and  municipalities  would 
acquire  the  use  of  the  churches,  that  is  to  say  the  free  exercise  of 
their  right  of  ownership.  But  the  Briand  Law  *  was  passed,  declar- 
ing that :  "In  the  absence  of  associations  for  worship,  edifices 
dedicated  to  worship,  as  likewise  the  furniture  found  therein,  shall 
remain  for  the  use  of  the  worshippers  and  priests  of  the  Catholic 
religion  for  the  practice  of  their  faith." 

The  law  said  nothing  more,  and  those  who  drafted  it  certainly 
had  not  foreseen  the  consequences  which  were  to  result  when  the 
question  of  its  enforcement  was  raised.  Conflicts  did  arise,  in 
fact,  pretty  frequently  between  the  mayors  and  the  curates.  The 
latter  were  regularly  named  by  the  bishop,  while  the  mayors,  act- 
ing in  the  name  of  the  municipality  as  owner,  sometimes  installed 
a  schismatic  priest,  who  introduced  into  the  municipality  a  form 
of  worship  that  was  equally  schismatic.  Orthodox  Catholics  and 
the  priests  regularly  appointed  by  the  bishop  claimed  the  use  of  the 
church  for  Catholic  worship.  Had  they  any  legal  means  of  effect- 
ing their  purpose?  They  were  not  owners,  for  the  municipality 
was  the  owner ;  they  could  not  hold  title  as  beneficial  users  of  the 
property,  since  they  were  not  a  person,  a  subject  of  right ;  in 
other  words  the  worshippers  as  a  group  certainly  did  not  possess 
legal  personality,  and  the  priest,  as  such,  had  no  legal  personality 
distinct  from  that  which  he  enjoyed  as  a  private  individual.  The 
congregation,  therefore,  had  no  right  of  action ;  in  the  individualis- 
tic or  subjective  system  they  could  not  have.  However,  the  Coun- 
cil of  State  and  the  civil  Courts  have  handed  down  a  very  impor- 
tant line  of  decisions,  recognizing  in  the  orthodox  priest  and  in  any 
orthodox  worshipper  in  a  municipality  the  power  to  act  in  order  to 
procure  protection  for  the  use  of  the  church  for  Catholic  worship, 
even  against  the  municipality  itself  as  owner.2     Here  we  discover 

1  January  2,  1907,  Art.  5,  Sec.  1. 

2  The  most  important  decision  of  the  Council  of  State  is  without  any 
doubt  that  of  the  case  of  Deliard,  February  8,  1908,  based  upon  the 
report  of  Chardenet,  the  State's  attorney.  In  this  case,  the  mayor  of  a 
certain  municipality,  having  issued  an  order  forbidding  both  the  priest 
regularly  installed  by  the  bishop,  and  also  the  priest  of  a  dissenting  body 
to  carry  on  the  orthodox  service  in  the  church,  the  Council  of  State  recog- 
nized in  Deliard,  who  had  been  appointed  by  the  bishop,  a  right  to  demand 
the  revocation  of  the  mayor's  decree.  The  Court  said:  "...  Deliard, 
a  Catholic  priest,  exercising  his  post  in  the  municipality  of  .  .  .  possesses 
an  interest,  as  indeed  does  every  Catholic  of  that  municipality,  to  procure 
the  revocation  of  a  decree  effecting  the  closing  of  the  church  .  .  . ;  the 
mayor,  by  his  decree,  has  trespassed  upon  the  free  exercise  of  worship 
guaranteed  by  Article  1  of  the  Law  of  December  9,  1905  and  Article  5  of 
the  Law  of  January  2,  1907.  .  .  .   "  ("Recueil",  1908,  p.    127.)     Similar 

145 


§  53]  PART   I      READJUSTMENT    OF   LAW  [Chap.    Ill 

a  right  of  property,  of  itself  negligible,  and  a  dedication  to  a 
use,  which  is  the  whole  thing ;  which  is  even  protected  against 
the  right  of  property  itself.  Here  the  application  of  property 
to  a  use  is  effectively  protected  as  such,  and  neither  a  subject  of 
right  nor  a  subjective  right  is  revealed.  No  more  striking  ex- 
ample could  be  found  of  the  evolution  of  juridical  conceptions 
already  sketched. 

decisions  by  the  civil  Courts  are  very  numerous.  I  will  only  mention 
three  of  the  most  recent. 

The  Court  of  Cassation  in  two  decisions,  Feb.  5,  and  6,  1912,  Baudouin, 
First  President,  presiding,  held  that  where  there  was  a  conflict  between 
two  priests,  of  whom  one  represented  a  form  of  service  not  recognized  by 
the  Church,  or  had  been  dismissed  by  the  bishop,  and  the  other  had  been 
regularly  named  by  the  bishop,  the  latter  alone  had  the  right  to  appeal 
to  the  civil  jurisdiction  for  power  to  carry  out  his  vocation  by  an  award, 
for  example,  of  the  keys  of  the  Church. 

The  second  case  was  that  of  the  Priest  Journiac,  of  the  Municipality 
of  Apchon,  affirming  the  Court  of  Riom,  March  1,  1909,  reported  in  Sirey, 
1909,  II,  p.  28,  where  we  read :  ".  .  .  under  the  terms  of  Article  5,  sec.  1 
of  the  Law  of  January  2,  1907,  in  the  absence  of  associations  organized  for 
worship,  edifices  given  over  to  religious  worship,  as  also  the  furniture  found 
therein  shall  continue  in  the  use  of  Catholics  and  ministers  of  that  religion 
for  the  practice  of  their  faith  ;  except  where  such  use  ceases,  as  provided 
for  by  the  Law  of  December  9,  1905 ;  .  .  .  this  law  expressly  continues 
under  the  new  regime  of  separation  the  use  of  religious  edifices  for  the 
service  which  had  previously  been  celebrated  there  under  the  Concordat ; 
...  in  applying  this  principle,  if  a  conflict  arise  between  two  priests  for 
the  occupation  of  the  same  Catholic  church,  its  use  is  to  be  exclusively 
reserved  to  the  priest  who  recognizes  the  authority  of  the  general  organisa- 
tion of  the  faith  according  to  which  he  proposes  to  worship,  especially  the 
authority  of  the  ecclesiastical  hierarchy,  and  who  remains  in  communion 
with  his  bishop ;  ...  an  appeal  is  without  grounds  which  merely  claims 
that  the  lower  Court  refused  to  inquire  whether  the  dismissal  of  the  priest 
Esdoluc  by  the  bishop  of  Saint-Flour  was  regular  according  to  canon 
law,  or  whether  it  was  not  in  fact  null  and  void  under  the  canon  law,  as  the 
plaintiff  expressly  alleged  ;  .  .  .  the  Court  of  Appeal  expressed  its  reasons 
for  refusing  to  go  into  these  claims,  rightly  declaring  that  it  had  no  juris- 
diction to  inquire  whether  the  measures  taken  by  the  Church  officers  over 
the  curates  Esdoluc  and  Journiac  were  in  agreement  with  the  rules  of  the 
canon  law,  or  to  inquire  into  the  propriety  of  those  measures."  Reported 
in  "Gazette  du  palais",  February  21,  1912. 

The  Court  of  Appeal  of  Paris,  February  9,  1912,  recognized  a  suit  for  a 
preliminary  judgment  brought  by  the  priest  of  the  cathedral  of  Rheims  and 
by  a  certain  number  of  his  parishioners,  demanding  the  reestablishment  in 
their  original  conditions  of  certain  dependencies  of  the  cathedral,  which 
had  been  modified  by  orders  of  the  prefect  of  the  Department.  Cf.  "Le 
Temps",  February  11,  1912;  cf.  Duguit,  "Traite  de  droit  constitution- 
nel"  (1911),  Vol.  II,  pp.  128  et  seq.  and  the  bibliography  and  list  of  cases 
there  cited;   Bach,  " L'affectation  des  eglises"  (1911). 


146 


Chap.    IV]  CHANGES   IN   FAMILY  LAW 


Chapter  IV 

CHANGES   OF   PRINCIPLE   IN  THE   FIELD  OF  FAMILY, 
INHERITANCE,  AND  PERSONS 

By  Joseph  Charmont1 
Introduction. 

I.    The  Family  of  Yesterday  and  of  To-day 


§  1.  Influence  of  Social  Environ- 
ment. 

§  2.  The  Family  of  the  Old  Re- 
gime. 


§  3.     Changes  in  the  Concentration 
of  Family  Ties. 


II.    Influence  of  Enforced  Partition  of  Estates 


§  4.     Enforced  Partition. 

§  5.  Operation  of  Enforced  Parti- 
tion. 

§6.  "Hofrecht",  "Homestead", 
"  Arrondierung." 

§  7.  Restoration  of  Parental  Testa- 
mentary Power. 


(1)  Enlargement    of    Dis- 

posable Portion. 

(2)  Liberty  of  Family  Ar- 

rangement. 

(3)  Disinheritance. 


III.    The  Corporation  and  the  Family 

§  8.    Results  of  the  Corporation.         I  §  10.  Proposed  Reforms. 
§  9.    Effects  on  the  Family.  | 

IV.    The  Industrial  System  and  the  Family 


§  11.     Present  Industrial  Organiza- 
tion. 
§  12.     State  Intervention. 

(1)  Regulation    of     Child 
Labor. 

(2)  Exceptions. 


§  13.  Other  Reforms ;  Employ- 
ment of  Women ;  Sunday 
Rest. 

§  14.  Industrial  Employment  of 
Women  in  the  Home. 


1  [This  Chapter  represents  pp.  1-164  of  the  author's  "Les  transforma- 
tions du  droit  civil"  (Paris,  1912,  Librairie  Armand  Colin,  Leclere  & 
Bourrelier). 

Joseph  Charmont  is  Professor  of  Civil  Law  at  the  University  of  Mont- 
pellier.  Among  his  other  works  are  :  "  Le  droit  et  l'esprit  democratique  " 
(1908) ;  "La  renaissance  du  droit  civil"  (1910).  Part  of  the  latter  work 
has  been  translated  into  English  in  Vol.  VII  of  the  Modern  Legal  Philos- 
ophy Series  (1916),  "  Modern  French  Legal  Philosophy." 

In  the  Editorial  Preface  to  the  last-named  volume  will  be  found  a  fuller 
account  of  the  author's  place  and  work  in  French  legal  thinking.  —  Ed.] 

147 


PART   I      READJUSTMENT    OF    LAW 


[Chap.    IV 


V.     Formalities  of  Marriage 


§  15.     Exaggerated    Formalism    of 

the  Code. 
§  16.     Legislative  Reforms. 


§  17.     Criticism  of  Reforms. 
§  18.     Legislation  in  Other  Coun- 
tries. 


§19. 


VI.    Social  Value  of  Marriage 

§  20.     Refutation  of  these  Views. 


Disapproval  of  the  Institu 
tion  of  Marriage. 


VII.    Married  Women's  Status 


§  21.  Parental  and  Marital  Au- 
thority. 

§  22.  History  of  the  Limitations 
Imposed. 

§  23.  Early  and  Revolutionary 
Law. 

§  24.     Napoleon's  Hostility. 


§  25.     Wife's  Civil  Incapacity. 

§  26.     Her  Nationality. 

§  27.     Her  Name. 

§  28.     Her  Loss  of  Liberty. 

§  29.  Inequality  of  Parental  Au- 
thority ;  German  and 
Swiss  Legislation. 


VIII.    Married  Women's  Property 


§30. 

§31. 

§32. 
§33. 
§34. 

§37. 


Diversity  of  Matrimonial 
Systems. 

Administrative  Union  in 
Germany  and  Switzer- 
land. 

Objections ;  Community 

Limited  to  Acquests. 

Husband's  Excessive  Powers 
under  Community. 

The  Wife's  Savings. 


( 1 )  Practice  under  the  Law 
of  1881. 

(2)  The  Law  of  1895. 
§  35.     The  Wife's  Earnings. 

(1)  What  are  Earnings. 

(2)  Scope  of  Her  Powers. 

(3)  Effect  of  Dissolution  of 
Community. 

§  36.     Penalty  Attaching  to  Mar- 
riage Obligations. 


IX.    Status  of  Minors  :    (1)  Abandoned  Children 


Two  Conceptions  of  Parental 
Powers ;  Conception  of  the 
Civil  Code. 


§  38.  State  Relief  of  Abandoned 
Children;  Practice  under 
State  Relief  Law. 


X.  Status  of  Minors:  (2)  Neglected  Children 


§  39.     Protection  against  Parents. 

§  40.  Relief  Legislation ;  Law  of 
1889. 

§  41.  Forfeiture  of  Parental  Au- 
thority. 

§  42.  Forfeiture  without  Penal 
Sentence. 

§43.  Effects  of  Forfeiture;  Vol- 
untary Guardian. 


§  44.     Restoration       of       Parental 
Authority. 

§  45.     Scope  of  Law  of  1889. 

§  46.     Judicial      Dispossession 
Parental  Authority. 

§  47.     Criticisms  of  the  Reforms. 

§  48.     Legislation  in   Other  Coun- 
tries. 


of 


XL    Status  of  Minors:    (3)  Vicious  and  Delinquent 

Children 


49.  Increase  of  Juvenile  Crime. 

50.  Parental     Correction;     Esti- 

mate of  Laws ;  Results. 


§  51. 
§  52. 
§53. 


Minors  under  Criminal  Law. 
Correctional  Institutions. 
Preventive  Measures. 


!  IS 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [iNTROD. 

Introduction.  —  In  this  study  we  have  tried  to  show  the  prin- 
cipal changes  that  have  taken  place  in  the  private  law  of  Francc 
since  the  adoption  of  the  Civil  Code.  We  have,  therefore,  as  a  rule 
taken  the  work  of  the  authors  of  the  Code  as  our  point  of  depart- 
ure, and  have  sought  to  show  how,  during  this  period  of  more  than 
a  century,  their  work  has  been  developed,  completed,  and  cor- 
rected. 

There  were  times  when  the  reforms  were  contained  in  germ  with- 
in the  Code  itself ;  the  principle  alone  had  been  established.  Thus, 
in  the  organization  of  the  family,  parental  authority  has  ceased  to 
be  a  right  established  for  the  benefit,  and  in  the  interest  of  the 
person  exercising  it.  As  early  as  1804  it  had  become  a  simple 
power  of  protection,  a  means  for  the  father  to  fulfill  his  duties 
toward  his  child.  But  the  idea  had  merely  been  formulated  ;  its 
consequences  had  not  yet  been  worked  out.  Little  by  little  they 
became  apparent  and  were  gradually  accepted.  In  this  case,  we 
shall  inquire  how  the  influence  of  this  conception  operated  upon 
subsequent  laws  and  customs,  upon  legislator  and  judge.  In  other 
cases  there  has  been  a  reaction  against  the  Code.  A  new  current 
has  set  in ;  the  law's  regulation  has  been  inspired  by  a  new  spirit ; 
there  has  been  a  consciousness  of  the  hardship  and  injustice  of 
certain  provisions,  and  these  have  been  repealed  or  reformed. 
It  will  suffice  to  cite  the  measures  affecting  the  condition  of  the 
illegitimate  child,  the  married  woman,  and  the  relations  of  em- 
ployer and  employee. 

The  important  point  seems  to  us  to  be  not  that  our  investigation 
shall  be  complete,  that  we  forget  nothing,  and  enumerate  every 
change  and  every  reform.  We  shall  only  inquire  into  certain 
fields  of  private  law,  those  relating  to  the  family,  to  property 
rights,  and  to  liability  for  injurious  acts. 

To  view  as  a  whole  the  changes  that  have  taken  place  in  the 
organization  of  the  family,  we  have  endeavored  to  sketch  the  traits 
that  differentiate  the  family  of  yesterday  from  that  of  to-day. 

Under  the  Old  Regime  the  family  was  more  stable,  more  solidly 
constituted.  Rural  land  holdings  were  in  a  sense  its  main  brace. 
The  aristocracy  was  an  aristocracy  of  land.  Custom  even  more 
than  the  law  tended  to  assure  the  preservation  and  the  undivided 
transmission  of  the  land,  which  continued  a  permanent  source  of 
protection  for  all  the  members  of  the  family. 

To-day  the  family  is  more  mobile,  less  stable,  and  less  rigidly 
constituted.  It  has  seemed  to  us  important  to  characterize  the 
economic  influences  to  which  it  has  been  subjected,  and  in  the  first 

149 


INTROD.]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV. 

place  that  of  enforced  partition.  With  each  generation  the  land  is 
divided.  Will  not  this  process  of  parcelling  lead  to  the  destruction 
of  the  family  and  of  small  ownership  ?  The  era  of  the  corporation 
has  replaced  the  landed  aristocracy  by  a  financial  oligarchy.  The 
families  possessing  capital  divide  into  two  classes  :  a  small  minority 
reserve  the  management  of  great  undertakings  and  the  greater 
share  of  the  profits ;  the  mass  is  composed  of  passive  husbanders 
of  earnings  who  cannot  do  without  the  law's  protection.  What 
the  law  has  accomplished  for  the  protection  of  the  modest  saver  is 
almost  nothing  in  comparison  to  what  remains  to  be  done.  Lastly, 
the  family  has  been  disorganized  by  industrial  labor  which  has 
called  in  turn  to  the  factory  the  father,  the  mother,  and  the  child. 
Here  again,  to  remedy  the  abuses,  the  intervention  of  the  law  has 
been  necessary.  It  is  from  the  point  of  view,  then,  of  family 
interests  that  we  have  studied  the  question  of  regulating  indus- 
trial labor.  .  .  . 

Strictly  speaking,  we  offer  no  conclusions.  Our  one  purpose  has 
been  to  portray  the  evolution  of  the  law  during  a  period  of  time. 
Just  as  life  may  not  be  anticipated,  so  its  deepest  meaning,  its 
ultimate  character,  escapes  us.  The  exposure  of  facts  holds  a  more 
important  place  in  this  book  than  the  discussion  of  ideas.  The 
questions  discussed  are  not  generally  susceptible  of  solution  by 
preferences.  Without  our  leave,  the  facts  answer  for  us.  Whether 
we  would  or  no,  and  whatever  may  be  our  opinion,  democracy, 
equality  before  the  law,  universal  suffrage,  in  our  day  and  in  a 
country  like  ours,  are  facts  which  must  be  reckoned  with.  The 
protection  of  the  married  woman  and  of  the  child,  the  regulation  of 
labor,  the  increasingly  numerous  restrictions  placed  upon  private 
property  in  the  interests  of  society,  are  also  facts  of  the  same  order. 

With  us,  however,  the  action  of  democracy  upon  law  is  not 
merely  accepted  as  a  necessity ;  we  welcome  it  as  progress.  In 
spite  of  the  causes  for  concern  and  regret  that  the  accomplished 
task  may  leave,  it  seems  to  us,  as  a  whole,  beneficial.  It  tends, 
by  assuring  to  each  his  share  of  right,  to  diminish  the  sum  of  un- 
just suffering  in  the  world. 

I.    The  Family  of  Yesterday  and  of  To-day 

§  1.    Influence   of  Social   Environ- I  §  2.    Distinguishing  Features. 

ment.  |  §  3.     Concentration  of  Family  Ties. 

§  1 .  Influence  of  Social  Environment.  —  What  changes  have 
been  taking  place  in  the  last  hundred  years  in  the  constitution  of 

150 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  1 

the  family?  Has  it  been  weakening?  Has  it  tended  toward 
disorganization?  Is  it  not  breaking  those  bounds  within  which 
the  Civil  Code  aimed  to  enclose  it  ? 

The  Code  looked  upon  marriage  as  the  legal  basis  of  the  family : 
out  of  it  arose  relationship,  parental  authority,  and  successorial 
rights.  The  entire  French  system  of  domestic  relationship  rests 
upon  marriage.  Marriage  establishes  the  bond  between  the  child 
and  the  families  of  its  father  and  mother ;  the  illegitimate  child, 
born  out  of  wedlock,  belongs  to  neither  of  the  families  of  its  parents. 
Nevertheless  it  has  become  necessary  to  take  into  account  the 
increasing  number  of  irregular  unions  and  to  give  heed  to  the  causes 
of  this  increase.  The  amelioration  in  the  condition  of  the  illegiti- 
mate child  has  already  become  a  necessity :  is  it  not  likely  that 
the  legislator  will  have  to  give  heed  to  these  irregular  unions,  to 
regard  them  as  a  second  basis  of  family  relationship,  recognizing 
them  under  certain  conditions  and  attributing  certain  consequences 
to  them  ? 

What  has  been  the  extent  of  the  influence  of  social  environment 
upon  the  family?  Taine  entitled  the  problem  thus:  "Church, 
school,  family,  modern  environment,  facilities  and  difficulties  which 
a  society,  constituted  as  ours,  finds  in  living  in  its  own  environ- 
ment." x  He  left  the  problem  unsolved.  It  would  seem  too  com- 
plex to  be  viewed  as  a  whole  and  to  receive  but  one  solution.  It 
would  first  require  numerous  exhaustive  studies  of  families,  ena- 
bling us  to  follow  their  history  in  point  of  time  and  space  through 
several  generations ;  to  know  and  understand  their  origin  and  their 
progress,  how  their  influence  has  grown  and  been  maintained,  and 
the  causes  and  nature  of  their  decadence.  Sociologists  have  scarcely 
touched  this  material ;  it  has  been  attempted  only  by  the  novel- 
ists. Balzac  and  Zola  have  each  portrayed  a  certain  period,  with 
its  passions,  trials,  and  sufferings,  the  vices  and  miseries  of  each 
social  class,  the  injustices  of  the  economic  system.  Unfortunately 
it  is  not  possible  in  such  works  to  separate  imagination  from  obser- 
vation, fiction  from  truth. 

When  facing  a  problem  that  is  too  general,  we  are  forced  to  divide 
it,  observing  it  from  various  aspects,  and  studying  independently 
each  of  the  causes  that  may  have  determined  an  effect.  Thus,  we 
may  investigate  the  influence  upon  the  family  of  certain  institu- 
tions, or  of  certain  economic  facts  such  as  the  enforced  partition  of 
lands,  the  rise  of  movable  wealth,  or  the  system  of  industrial  labor. 

1  "Les  origines  de  la  France  contemporaine  ",  Vol.  II,  "  Le  regime  mo- 
derne",  pref.,  p.  1. 

151 


§   1]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

We  may  also  by  a  comparison  separate  out  the  principal  features 
that  distinguish  the  family  of  yesterday  from  the  family  of  to-day. 

§  2.  The  Family  of  the  Old  Regime.  —  It  seems  paradoxical  to 
say  that  we  know  the  families  of  the  past  better  than  those  of  the 
period  in  which  we  are  living.  But  nothing  is  more  difficult  than 
to  observe  and  know  one's  own  time.  To  detach  ourselves  from  our 
own  ideas,  said  Taine,1  "  to  force  our  minds  to  withdraw  the  neces- 
sary distance,  to  stand  aloof  and  adopt  the  critic's  viewpoint,  to 
observe  successfully  ourselves,  our  notions  and  our  institutions  as 
objects  of  science,  requires  a  great  effort,  many  precautions,  and 
long  reflection."  We  know  little  of  our  own  family.  Has  it  al- 
ways belonged  to  the  same  social  economic  class  ?  If  not,  how  did 
the  change  take  place  ?  If  there  has  been  decadence  or  impoverish- 
ment, in  what  measure  are  we  or  our  ancestors  responsible  ?  We 
scarcely  know  more  than  the  external  history  of  each  family,  its 
apparent  fortune,  its  profession,  worldly  relations,  the  esteem  in 
which  it  is  held  ;  while  much  of  its  suffering,  its  inward  misery,  its 
acts  of  doubtful  honesty  remain  hidden.  Each  group  seeks  to  hide 
or  to  bury  in  forgetfulness  the  faults  and  weaknesses  of  its  mem- 
bers. 

On  the  other  hand,  archives,  memoirs,  and  journals  often  instruct 
us  far  better  in  the  history  of  the  families  of  former  periods.  There 
have  been  published  many  of  these  old  family  journals  which  it 
was  customary  to  keep,  and  wherein  were  entered  all  events  of 
importance,  genealogy,  marriages,  the  births  and  deaths  of  rela- 
tives, fortune,  inventories  and  titles  to  property. 

On  weighing  these  critical  data,  two  fundamental  differences 
become  apparent.  The  family  of  former  times  was  larger  and 
stabler  than  the  present  family ;  parental  authority  was  stronger 
and  more  respected.  In  the  middle  and  rural  classes  under  the 
Old  Regime,  the  family  was  stable,  faithful  to  its  traditions,  and 
attached  to  one  profession  and  locality.  As  families  were  large, 
some  of  the  children  frequently  left  and  established  themselves 
elsewhere.  But  the  family  nucleus  perpetuated  itself,  preserved 
its  home,  and  in  each  generation  counted  a  representative  in  its 
chosen  profession, — -lawyer,  solicitor,  merchant,  or  husbandman. 
When  we  consult  the  archives  of  the  small  municipalities,  we  find 
tli<-  same  family  on  the  same  land  throughout  centuries.  Its  tend- 
ency was  to  rise  gradually  ;  each  generation  passed  to  a  new  level. 
Paul  B  ilirget  called  this  progress  the  "mile-stones"  ('Teiape"). 

i.'     origines  de  la  France  contemporaine  ",  Vol.  II,  "  Le  regime  mo- 
derne  ",  pref.,  p.  2. 

152 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  2 

To-day  the  conditions  are  far  more  unstable.  Parents  provide, 
with  great  sacrifice,  for  the  future  establishment  of  their  few  chil- 
dren, and  concentrate  their  affection  upon  them.  Rivalry  has 
grown  much  more  acute,  and  the  sense  of  solidarity  among  relatives 
has  weakened.  We  may  be  excused  from  concern  for  others,  and 
we  can  rely  upon  scarcely  any  but  ourselves.  And  so  some  go  far, 
rise  high ;  but  those  who  fall  are  abandoned  to  themselves  and 
reach  the  depths  of  misery.  Another  phenomenon  that  is  charac- 
teristic has  taken  place :  urban  immigration.  The  cities  have 
exercised  a  sort  of  attraction.  In  1846  urban  population  repre- 
sented scarcely  a  fourth  of  the  total  of  France ;  in  1896  it  was 
already  more  than  a  third  ;  it  will  soon  be  a  half.  This  displace- 
ment or  dispersion  breaks  or  loosens  the  family  ties ;  relatives  no 
longer  know  each  other,  and  are  even  lost  to  sight. 

The  families  of  earlier  periods  were  not  alone  more  unified  and 
sedentary ;  they  were  also  more  subject  to  discipline.  Parental 
authority  was  very  inflexible  —  especially  in  the  southern  prov- 
inces, known  as  those  of  the  written  law,  where  Roman  influence 
had  been  preserved.  The  powers  of  the  father  were  lifelong. 
Their  consequences  continued  without  regard  to  the  child's  age, 
unless  the  father  himself  by  a  formal  voluntary  act  of  emancipa- 
tion renounced  his  rights.  In  some  provinces  of  the  written  law, 
it  is  true,  marriage  emancipated.  But  emancipation  of  this  sort 
appears  to  have  been  exceptional ;  and  in  the  jurisdiction  of  those 
Parlements  that  rejected  it,  the  children  of  a  son  who  was  married 
but  not  emancipated,  did  not  come  under  their  father's  power, 
but  (as  at  Rome)  under  that  of  their  paternal  grandfather.  In  a 
monograph  upon  a  family  of  Limousin,  by  Guibert,  we  may  read 
the  account  of  one  of  these  tardy  emancipations,  performed  some 
weeks  before  the  date  of  the  Revolutionary  enactment  that  sup- 
pressed the  permanent  character  of  parental  authority.  The 
account  shows  the  father  so  aged  and  infirm  that  the  judge  has  to 
come  to  the  house.  The  son  of  forty-seven  years,  a  priest  of 
Bazoches-en-Gatinais,  "  falls  upon  his  knees,  and,  clasping  his 
hands,  prays  his  father  to  emancipate  him,  that  he  may  conduct 
his  affairs  as  a  free  and  independent  man.  The  aged  father  de- 
clares his  consent  that  his  son  be  henceforth  enfranchised  from  his 
authority ;  and  in  sign  of  emancipation,  the  father  raises  the  son 
and  unclasps  his  hands."  1 

Apart  from  certain  exceptional  classes  of  property  (the  "  pe- 
culae  "),all  the  child's  earnings  belonged  to  the  father,  absolutely, 
1  Guibert,  "La  famille  limousine  d" autrefois",  p.  24. 
153 


§  2]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

or  at  least  beneficially.1  Even  with  his  father's  consent  the  child 
could  not  make  a  will.  The  rule  of  the  "  Senatusconsultum 
Macedonianum  "  remained  in  force,  according  to  which  the  son, 
even  when  of  age,  could  not  bind  himself  for  a  loan. 

The  father  possessed  a  right  of  correction  and  absolute  direction 
over  his  child's  person,  —  a  right  which  survived  from  the  Roman 
law.  All  decisions  affecting  the  future,  such  as  marriage  or  the 
choice  of  a  career,  were  made  by  the  father,  or  at  least  at  his  sug- 
gestion ;  and  his  authority  was  respected  to  such  a  point  that  we 
cannot  say  whether  it  was  based  upon  custom  or  upon  law.  The 
father  might  himself  punish  his  son,  on  condition  that  he  did  not 
exceed  a  limit,  varying  at  different  times  and  places.  He  might 
demand  of  the  court  an  order  to  imprison  Ins  child,  and  in  most 
cases  the  order  of  detention  could  not  be  refused.  In  the  earlier 
days,  we  hear  of  sons  who  have  passed  well  beyond  the  age  of 
majority  committed  upon  demand  of  parents.  However,  a  decree 
of  the  Parlement  of  Paris  2  of  March  9,  1673,  decided  that  this 
right  could  not  be  exercised  after  the  son  had  attained  the  age  of 
twenty-five,  and  this  rule  seems  to  have  been  not  without  influence 
in  the  provinces  of  written  law.  Nevertheless,  it  should  not  be 
supposed  that,  even  in  extreme  cases,  the  father  was  deprived  of  all 
authority  over  the  son  who  was  of  age.  If  a  noble  of  high  rank, 
he  could  obtain  a  "  lettre  de  cachet  "  from  the  king.  It  was  thus, 
through  a  "  lettre  de  cachet",  upon  his  father's  demand,  that 
Mirabeau,  then  twenty-five  years  of  age,  was  imprisoned  in  1774 
in  the  Chateau  d'lf.  An  ordinance  of  July  15,  1763,  similarly 
decided  that  "  parents  whose  sons  have  fallen  into  irregularities  of 
conduct,  capable  of  risking  the  honor  and  tranquillity  of  their 
families  .  .  .  without,  however,  being  declared  'guilty  of  any 
crime,  against  which  the  law  has  provided  a  penalty,  may  demand 
of  the  Secretary  of  State  for  War  and  Navy  their  deportation  to 
the  Island  of  La  Desirade.     If  the  parents'  reasons  are  found 

1  "The  earnings  of  the  child,  or  his  wages,  even  at  an  advanced  age,  do 
not  belong  to  him  in  his  own  right  until  the  head  of  the  family  has  made 

of  i  hem  to  him,  —  'si  lo  pair  ne  Ten  avia  faih  do.'  These  are  the 
words  of  the  customary,  in  the  oldest  codification  preserved  to  us,  the 
text  of  our  consular  registers,  dating  from  1212."  Ibid.,  p.  22.  We  may 
also  cote  t  hal ,  when  a  child  married,  it  was  not  he,  but  his  father,  the  head 
of  the  family,  who  received  the  wife's  dowry,  gave  a  release  for  it,  and 
managed  it.  Ibid.,  p.  40.  Cf.  also,  J  alien,  "  Fh'ments  de  jurisprudence" 
(Aix,  1785),  p.  7'J. 

2  [Tin'  "parlements"  of  1  lie  Old  Regime  were  of  course  primarily 
judicial,  nol  Legislative  bodies.  Cf.  Bris&aud,  "History  of  French  Public 
Law",  Continental  Legal  EKstory  Series,  Vol.  IX  (Boston,  1915),  pp. 
343  et  .'•"/.     For  its  legislative  powers,  ibid.,  p.  445.  —  Transl.] 

154 


Chap.    IVJ  CHANGES   IN   FAMILY   LAW  [§  3 

justified,  the  young  men  shall  be  conducted  to  La  Desirade  upon 
an  order  of  the  king,  who  charges  himself,  after  their  arrival  at 
Rochefort,  with  all  the  expenses  of  their  detention  and  support." 

Without  having  recourse  to  such  vigorous  means, the  father  who 
had  cause  to  complain  of  his  son  might  also  deprive  him  of  his 
"  legal  share  "  l  and  exclude  him  from  the  succession  by  disin- 
heritance. The  right  of  disinheritance  was  not  arbitrary,  however. 
It  could  only  be  used  upon  just  grounds,  which  were  considered  to 
be  the  fourteen  causes  mentioned  in  Justinian's  115th  Novel.  To 
marry  without  one's  parents'  consent,  or  at  least  before  a  certain 
age  (twenty-five  years  in  the  case  of  daughters,  thirty  of  sons), 
had  been  held  by  several  royal  ordinances  to  be  another  cause  justi- 
fying disherison. 

§  3.  Changes  in  the  Concentration  of  Family  Ties.  —  We  may 
now  measure  the  importance  of  the  changes  that  have  taken  place 
in  the  organization  of  the  family.  A  struggle  that  had  long  been 
waged  between  two  conceptions  ended  in  the  triumph  of  one. 
Pa  rental  authority  ceased  to  be  a  right  created  in  the  interest  and 
benefit  of  him  who  exercised  it,  and  became  a  simple  power  of  pro- 
tection, a  means  whereby  the  father  might  fulfill  his  duty  toward 
his  child.  A  fresh  evolution  began  with  the  adoption  of  the  Civil 
Code.  Little  by  little  all  the  logical  consequences  of  this  new 
principle  became  evident  and  were  gradually  given  effect.  The 
legislator  has  had  necessarily  to  intervene  whenever  the  duties 
which  justified  the  father's  exercise  of  authority  were  not  performed, 
or  whenever  his  rights  were  diverted  from  their  purposes.  To  this 
necessity  belong  the  laws  upon  obligatory  education,  upon  the 
working  of  minors  in  factories,  and  for  the  protection  of  children 
who  are  abused  or  neglected. 

Briefly,  there  is  less  authority  and  more  kindness  and  affection  ; 
fewer  lives  are  sacrificed  to-day  than  in  the  former  period.  If 
equality  of  partition  has  not  done  away  with  the  possibility  of 
trouble  between  children,  at  least  it  has  done  away  with  many 
important  causes  of  jealousy.  The  family  has  in  fact  concen- 
trated rather  than  weakened. 

When  we  consider  the  many  sacrifices  that  parents  impose  upon 
themselves  in  every  social  class,  in  bringing  up  their  children,  in 
caring  for  their  health  and  providing  an  education,  in  helping  to 
establish  them  in  life  in  such  a  manner  as  to  secure  a  higher  or  better 
position  than  that  enjoyed  by  themselves,  we  see  clearly  that  family 
spirit  is  not  extinct,  that  the  State  cannot  hope  to  replace  the 

1  See  34. 
155 


§  3]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

devotion  and  initiative  of  parents,  and  that  any  unjustified  inter- 
ference by  it  would  arouse  the  liveliest  resistance.  The  laws  that 
have  followed  the  adoption  of  the  Code  must  give  us  no  illusion. 
They  show,  it  is  true,  that  State  intervention  tends  to  increase; 
but  they  also  fix  the  limit  of  that  intervention.  They  are  meas- 
ures in  protection  of  childhood ;  and  it  is  precisely  because  child- 
hood to-day  inspires  more  love  and  solicitude  than  formerly,  that 
opinion  has  risen  against  abuses  that  seem  more  revolting  now 
than  then.  But  most  parents  have  a  sense  of  their  duty,  and  they 
are  not  disposed  to  yield  their  place  to  the  State.  Danger  may 
even  lie  in  the  excess  of  affection,  which  Taine  called  "  paidolatry." 
An  only  child  often  absorbs  all  the  care,  attention,  and  resources 
of  its  parents.  And  its  careful  education  does  not  give  results 
corresponding  to  the  sacrifices  it  has  cost,  nor  create  health,  energy, 
initiative,  or  sense  of  responsibility.  In  every  organization,  the 
spirit  of  sacrifice  develops  in  proportion  to  what  we  give  and  selfish- 
ness in  proportion  to  what  we  receive.  The  family  does  not 
escape  this  law.  The  instability  of  the  middle  class  is  a  striking 
consequence. 

II.    Influence  of  Enforced  Partition  of  Estates 

§  4.  Enforced  Partition  of  Estates.  —  Complex  as  our  problem 
is,  we  remarked  that  there  was  need  of  viewing  it  under  different 
aspects,  studying  independently  each  of  the  causes  which  may  have 
determined  an  effect.  Unfortunately  social  science  accommodates 
itself  ill  to  this  method.  In  the  natural  sciences  we  may  determine 
by  experiment  the  action  of  a  single  cause.  But  society  cannot 
be  a  subject  of  experimentation ;  we  cannot  isolate  the  causes 
whose  action  we  would  study,  nor  so  arrange  things  that  a  single 
cause  can  operate  to  the  exclusion  of  others.  Let  us  suppose,  as 
Gide  has  done,1  that  two  countries  are,  during  the  same  period  of 
time,  one  under  a  policy  of  free  trade,  the  other  of  protection.  The 
first  increases  in  wealth,  the  second  is  ruined.  The  experiment 
will  not  be  conclusive.  The  result  is  not  in  fact  due  to  a  single  cause. 
The  nature  of  the  soil,  agricultural  methods,  the  political  system, 
the  intensity  of  private  initiative  and  energy,  —  all  contribute  to 
explain  1  he  result. 

We  shall  therefore  employ  this  method  with  reserve.  Mis- 
trusting ourselves  and  it,  we  shall  inquire  what  influence  three 
fad  ,  economic  in  their  nature,  may  have  had  upon  the  status  and 

1  "Principes  d'Economie  politique"  (6th  ed.),  p.  18. 
156 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  4 

condition  of  the  family  :  enforced  partition,  the  rise  of  the  stock 
company,  and  the  system  of  industrial  labor. 

According  to  Le  Play's  classification,1  we  may  separate  three 
principal  types  from  the  almost  infinitely  varied  systems  of  inherit- 
ance. The  legislator  may  exercise  no  constraint  at  all  over  the 
intent  of  the  owner  and  leave  him  the  right  to  choose  freely  the 
system  of  distribution  that  suits  him.  This  is  the  system  of 
testamentary  liberty.  Or,  the  State  may  intervene  and  regulate  the 
transmission ;  the  law  will  then  obey  one  of  two  tendencies.  It 
may  aim  to  prevent  partition  of  the  estate,  and  endeavors  by 
various  means  (right  of  the  eldest  son,  exclusion  of  daughters, 
trust  entails,  the  "  majorat  "  2),  to  insure  transmission  to  a  single 
person.  This  is  the  system  of  enforced  conservation.  Or,  it  may 
prefer  to  divide  the  estate  among  a  large  number  of  persons  rather 
than  transmit  it  integrally.  In  this  case  the  liberty  of  the  owner  is 
restrained  in  the  interest  of  the  heirs  as  a  whole.  This  is  the  sys- 
tem of  the  reserve  and  the  system  of  enforced  partition,  which,  with 
all  their  differences,  present  one  feature  in  common :  they  both 
exercise  a  constraint  upon  the  owner's  intent.  But  the  action  is 
exercised  in  different  directions :  one  encourages  the  concentra- 
tion, the  other  the  parcelling  of  the  property. 

In  adopting  this  classification,  it  should  be  observed  that  it  does 
not  precisely  correspond  to  reality.  Most  legislations  have  not 
established  any  one  of  these  three  systems  absolutely.  The  Eng- 
lish system  is  one  of  testamentary  liberty,  though  it  borrows  some- 
thing from  the  system  of  enforced  conservation,  for  in  certain 
cases  it  preserves  the  right  of  the  eldest  son.  Certain  other  legisla- 
tions admit  a  fairly  broad  testamentary  liberty  without  such  liberty 
being  complete.  How  may  they  be  classified?  We  hesitate  to 
say  ;  in  any  event  the  classification  must  always  be  arbitrary.  Le 
Play  proposed  that  all  countries  be  regarded  as  adopting  the  prin- 
ciple of  testamentary  liberty  when  they  permitted  a  property 
holder,  regardless  of  the  number  of  his  children,  to  dispose  of  at 
least  one  half  his  property.  Consequently  the  system  of  en  forced 
partition  merely  implied  that  the  disposable  portion  was  less  than 
one  half.  This  is  the  system  of  the  French  Civil  Code,  which 
established  a  disposable  portion  varying  according  to  the  number 
of  the  descendants. 

1  "La  reforme  sociale"  (6th  ed.),  Vol.  I,  chap,  xviii,  par.  3,  p.  252. 

2  ["Majorat",  an  institution  of  the  early  law,  was  a  perpetual  and  indi- 
visible trust  in  land  in  favor  of  the  eldest  of  the  family.  Cf.  Brissaud, 
"History  of  French  Private  Law",  Continental  Legal  History  Series,  Vol. 
Ill  (Boston,  1912),  §  513.  —  Transl.] 

157 


§  4]  PART    I      READJUSTMENT    OF   LAW  [Chap.    IV 

Let  us  now  examine  the  effects  of  this  system,  its  advantages 
and  its  disadvantages.  Enforced  partition  (said  its  greatest 
adversary,  Le  Play),  is  primarily  a  dissolving  agent.  It  dis- 
organizes the  family,  destroys  small  land  ownership,  and  decreases 
the  birth  rate. 

§  5.  Operation  of  Enforced  Partition.  —  To  understand  this 
institution,  we  must  notice  how  it  operates.  Its  action  is  not 
immediate ;  it  is  possible  to  arrest  it  for  a  certain  time  by  custom 
or  by  evasion.  Sustained  by  local  tradition,  peasant  families 
endeavor  to  prevent  the  division  of  the  inheritance.  By  agreement 
with  all  members  of  his  family,  the  father  transfers  his  land  during 
his  life  to  a  chosen  heir,  charging  him  with  the  obligation  of  provid- 
ing marriage  portions  for  those  who  leave  the  family  by  marriage, 
or  of  aiding  the  others.  But  this  customary  influence  can  not  long 
endure.  Many  persons,  by  disposition  or  interest,  arouse  the  envy 
or  cupidity  of  the  heirs.  The  father  then  comes  to  an  understand- 
ing with  his  chosen  heir  and  endeavors  to  benefit  him  without  the 
knowledge  of  the  other  children.  He  has  recourse  to  gifts,  to  dis- 
guised donations ;  in  the  partition,  appraisals  are  made  below  the 
true  value  of  the  property.  But  such  frauds  are  easy  enough  to 
discover  as  a  rule.  A  disguised  donation  may  be  exposed,  by  any 
proof  available ;  or  a  gift  in  partition  may  be  revoked  on  the 
ground  of  fraud,  even  after  acceptance ;  or  a  renunciation  of  suc- 
cessorial  rights  may  be  annulled.  In  these  controversies,  the 
final  word  rests  with  the  law ;  and  the  time  is  near  when,  through 
fear  of  litigation,  no  one  will  longer  dare  to  risk  such  difficulties. 

Enforced  partition  is  bound  to  produce  its  effects.  There  are 
several  possible  alternatives.  By  a  sale  among  the  co-owners  or  by 
amicable  arrangement  a  single  heir  may  retain  the  property  and 
charge  himself  with  the  payment  of  parts  in  money  to  the  others ; 
or,  the  property  is  purchased  by  a  third  person,  the  heirs  dividing 
the  purchase  price  ;  or  there  is  an  actual  partition  of  the  land. 

(1)  An  amicable  arrangement  appears  very  much  the  best 
means  of  safeguarding  the  unity  of  the  family  and  the  preservation 
of  the  estate.  But  the  burden  assumed  by  the  heir  who  retains 
the  property  is  so  heavy  that  it  is  generally  impossible  for  him  to 
support  it.  As  a  rule,  the  heir  who  desires  to  retain  the  land  does 
not  measure  his  own  strength.  The  affection  he  feels  for  the  land 
causes  an  illusion  as  to  its  value.  In  many  parts  of  France  the 
basis  of  the  capitalization  of  rural  income  is  upon  a  rating  of  thirty- 
three  to  one  (  that  is  to  say,  the  value  of  the  land  is  estimated  at 
thirty-three  times  its  yearly  revenue) ;    this  corresponds  to  an 

158 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  5 

investment  at  three  per  cent  for  the  purchaser;  thus,  land  re- 
turning 1000  francs  is  valued  at  33,000  francs.  In  such  a  case, 
let  us  suppose  that  there  are  three  children,  and  that  the  child 
retaining  the  land  has  already  received  during  his  life,  as  an  ab- 
solute gift,  the  legally  disposable  portion  of  the  estate;  he  will 
have  to  pay  to  his  two  brothers  together  16,500  francs  as  their 
share  in  the  partition.1  How  can  he  procure  such  a  sum  save  by 
borrowing  upon  mortgage?  He  contracts  the  loan  ordinarily  at 
five  per  cent ;  but  the  notarial  costs,  revenue  tax,  and  the  charges 
for  recording,  which  must  be  added,  make  it  considerably  more 
burdensome.  Thus  we  have  an  instance  of  one  obliged  to  pay 
out  annually  a  sum  roughly  equal  to  the  revenue  from  the  land 
retained.  It  is  only  by  a  miracle  that  he  succeeds  in  getting  a 
living  and  meeting  the  interest.  How  may  he  hope  to  succeed  by 
any  amount  of  toil,  in  putting  aside  marriage  portions  for  his 
children  and  in  reimbursing  the  principal  of  his  debt?  The  year 
comes  when  the  debt  falls  due ;  the  season  has  been  bad,  or  some 
other  misfortune  has  befallen ;  foreclosure  is  inevitable,  with  its 
customary  train  of  expenses,  humiliation,  and,  in  a  time  of  depres- 
sion, the  necessity  of  a  sacrifice  sale.  This,  then,  is  the  end ;  to 
this  he  has  come,  as  the  years  decline, — misfortune,  long-suffering, 
overwork,  his  life  a  sacrifice.2 

(2)  Better  certainly  that  he  resign  himself  to  the  second  method  : 
an  immediate  sale  of  the  land  and  division  of  the  purchase  price. 
This  practice  has  prevailed  in  certain  parts  of  France,  notably  in 
Normandy.  As  in  the  preceding  case,  so  here,  also,  enforced 
partition  leads  to  the  destruction  of  small  rural  land-holding.  The 
heirs  of  the  former  owner  fall  to  the  rank  of  lessee-farmers  or 
"  metayers",  or  try  their  fortune  in  the  cities. 

(3)  A  last  alternative  remains :  an  actual  division  of  the  land. 
In  appearance  it  is  the  simplest  solution,  but  it  is  not  the  least 
unfortunate.  The  number  of  owners  is  increased,  but  the  working 
of  the  land  is  rendered  impossible.  An  agricultural  establish- 
ment presupposes,  in  fact,  buildings,  animals,  agricultural  instru- 
ments, and  a  certain  amount  of  land.     The  value  and  the  utility  of 

1  [In  the  example  the  testator  would  be  legally  allowed  to  dispose  of  one 
fourth.  This  he  gives  his  chosen  heir.  The  remaining  three  fourths  go 
equally  to  the  three  children  ;  here  the  heir  gets  one  third  ;  his  whole  interest 
being,  therefore,  one  half.  But  as  he  takes  in  fact  the  whole  property,  he 
must  pav  his  brothers  one  quarter  each  or  16,500  francs  in  all.  —  Transl.J 

2  Cf.  LePlay,  "Lareforme  sociale",  Vol.  II,  pp.  212-225  ;  C.  Jannet,  "Le 
socialisme  d'  Etat  et  la  reforme  sociale",  p.  461.  See  also  the  investigations 
into  the  condition  of  families  and  the  application  of  the  inheritance  laws, 
published  by  the  "Societe  d'Economie  Sociale." 

159 


§  5]  PART   I      READJUSTMENT   OF  LAW  [Chap.    IV 

these  different  elements  result  from  their  union ;   they  disappear 
when  separated. 

If  the  buildings  are  given  to  one  heir,  they  will  be  out  of  propor- 
tion to  the  diminished  operation,  while  the  other  heirs  will  fall  into 
debt  in  erecting  new  constructions  on  their  portions.  A  physical 
allotment  of  the  home  and  dependencies  creates  other  difficulties. 
It  condemns  persons,  who  are  desirous  of  keeping  their  interests 
separate,  to  live  together  in  a  sort  of  ill-defined  community-life, 
—  a  cause  of  inconvenience  and  a  permanent  source  of  friction  and 
disagreement. 

The  same  disadvantages  ensue  from  a  partition  of  the  land. 
The  division  of  the  orchards,  pastures,  and  fields,  which  were 
suited  to  the  needs  of  a  single  family,  places  the  owners  in  a  condi- 
tion of  reciprocal  dependence,  renders  the  use  of  machinery  im- 
possible, and  reduces  part  of  the  soil  to  unproductiveness  by  use- 
lessly multiplying  the  number  of  fences  and  ways  of  access.  Forced 
to  seek  additional  income,  the  small  land-owner  hires  out  his  serv- 
ices and  so  ultimately  falls  into  the  class  of  wage-earners.  The 
fear  of  this  descent  from  their  economic  class  inspires  parents  in  too 
many  instances  to  adopt  a  deplorable  means  of  prevention.  For- 
bidden the  right  to  favor  the  eldest  child,  a  large  family  is  avoided  ; 
families  have  but  a  single  heir.  In  this  way  enforced  partition 
exercises  a  depressing  influence  upon  the  birth-rate. 

What  value  have  the  foregoing  criticisms  ?  They  contain  some 
truth,  certainly,  but  also  much  exaggeration. 

As  to  the  birth-rate,  it  is  well  known  how  uncertain  is  the  deter- 
mination of  the  causes  of  its  falling  off.  Many  may  be  cited,  which 
act  together  :  the  custom  of  the  marriage  portion  ;  the  high  cost  of 
living ;  increased  luxuries  and  comforts ;  the  encumberment  of 
public  offices  and  liberal  professions  (access  to  which,  as  it  becomes 
more  difficult,  tends  to  raise  the  age  of  marriage) ;  finally,  surpris- 
ing though  it  may  seem,  the  want  of  emigration.  Whatever  may 
be  the  relative  influence  of  these  various  causes,  we  are  justified  in 
thinking  that  the  operation  of  the  inheritance  laws  is  in  reality 
secondary.  We  need  only  note,  first,  that  in  certain  countries 
where  the  system  of  the  French  Code  is  in  force  (in  Belgium  and  in 
the  Rhenish  Provinces  before  1900,  for  example),  the  birth-rate 
has  not  decreased  ;  and,  secondly,  that  the  tendency  to  its  decrease 
in  France  dates  from  a  much  earlier  period  than  the  adoption  of 
the  Civil  Code.  For  a  long  time,  notably  from  1830  to  1846,  the 
birth-rate  of  France  almost  equalled  that  of  other  countries  of 
Europe. 

160 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  5 

Similarly  the  influence  of  the  inheritance  laws  upon  the  destruc- 
tion of  small  ownership  has  clearly  been  exaggerated.  When  the 
influences  of  the  Civil  Code  are  attacked  as  injurious,  many  things 
are  forgotten.  In  the  first  place,  equal  partition  existed  in  our 
early  law  in  the  case  of  persons  beneath  the  noble  class ;  testamen- 
tary liberty  was  not  much  greater  than  it  is  to-day.  The  legal 
share  ("  legitime  ")  l  was  as  a  rule  one-half,  but  in  the  case  of  cer- 
tain property  the  law  required  a  very  large  reserve.  Thus  a  father 
might  dispose  of  only  a  fifth  of  his  separate  estate.  Most  of  the 
Customs  did  not  admit  of  absolute  gifts  "  inter  vivos  "  in  favor  of  a 
descendant  who  was  an  intestate  heir.  Finally,  testamentary 
liberty  was  often  curtailed  by  trust-entails.  It  must,  then,  be 
recognized  that,  in  a  general  way,  liberty  is  less  restricted  and  more 
respected  to-day  than  it  was  both  under  the  Revolution  and  also 
under  the  Old  Regime. 

In  the  second  place,  there  is  every  reason  to  believe  that  peasant 
ownership  is  not  condemned  to  disappear.  It  represents  about 
one-fourth  of  the  land  in  France,  and  tends  to  increase,  though 
rather  slowly.  At  least  it  reestablishes  itself  in  proportion  as  the 
land  is  sub-divided.  Very  gradually,  the  commercial  class  aban- 
dons possession  of  the  soil  and  ceases  to  regard  land  as  an  invest- 
ment. Land  ownership  no  longer  carries  the  social  influence  that 
it  once  did ;  the  rise  of  movable  wealth  has  created  a  great  rival. 
More  and  more  the  exploitation  of  land  is  coming  to  require  a 
present  and  enlightened  attention.  In  this  way,  many  large  and 
medium  estates  have  been  parcelled  among  the  peasants. 

And,  lastly,  there  appears  no  doubt  but  that  equality  among 
descendants  is  demanded  as  the  only  solution  conforming  to  our 
notion  of  justice.  The  increase  of  the  disposable  portion  might 
sometimes  ease  the  situation  of  the  favorite,  but  it  would  notably 
injure  that  of  the  other  children.  Suppose  an  inheritance  of 
40,000  francs,  and  five  children ;  if  one  half  be  disposable,  the 
favorite  might  get  fr.  24,000,  but  each  other  child  fr.  4000,  or 
only  one  sixth  as  much.  The  school  of  Le  Play,  which  advo- 
cates, as  its  special  feature,  a  strong  family  organization,  is  unable 
to  deny  the  fact  that  this  condemns  to  separation  all  those  children 
not  permitted  to  live  on  the  family  estate.  The  chosen  heir  estab- 
lishes himself  on  the  land  of  his  parents  and  lives  as  they  did. 
But  what  becomes  of  the  others  ?  We  need  have  no  illusion  that, 
in  the  present  state  of  our  society,  they  will  consent  to  live  with  the 

1  [A  Roman  survival  in  the  provinces  of  written  law,  providing  a  main- 
tenance for  the  children  out  of  the  movables  of  the  deceased.  —  Transl.] 

161 


§  5]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

eldest  son  in  a  position  of  inferiority  which  (as  Cauwes  says  x),  is  in 
a  way  that  of  domestic  servant,  without  wages  and  usually  con- 
demned to  celibacy.  Since  they  received  only  a  diminished  part 
and  this  in  money,  nothing  attaches  them  any  longer  to  the  family 
lands.  A  life  passed  continually  in  the  sight  of  the  injustice 
which  they  believe  they  have  suffered  adds  to  the  attraction  of 
the  cities  and  induces  them  to  depart.  Some,  no  doubt,  suc- 
ceed ;  but  the  majority  go  to  swell  the  ever-rising  wave  of  the 
indigent  and  fallen.  We  must,  therefore,  accept  as  a  necessity 
the  principle  of  enforced  partition. 

§  6.  "  Hofrecht",  "  Homestead",  "  Arrondirung."  —  Is  it  not 
possible  at  least  to  lessen  these  dangers?  Numerous  measures 
have  been  proposed  to  this  end.  Some  aim  to  fortify  the  father's 
authority  by  different  means ;  others  to  assure  by  law  the  preserva- 
tion of  the  home  and  the  stability  of  the  family.  To  preserve  the 
integrity  of  the  home,  an  effort  has  been  made  to  borrow  from  three 
institutions  found  in  foreign  legislations :  the  "  homestead",  the 
"hofrecht",  and  the  "arrondirung", — the  first  employed  in 
the  United  States,  the  two  others  in  parts  of  Germany. 

Under  the  name  of  "  homestead  exemption  law",  are  designated 
those  legislative  acts  the  effect  of  which  is  to  place  the  home  and  a 
certain  extent  of  appurtenant  land  out  of  reach  of  creditors,  and 
to  subject  their  alienation  to  certain  conditions  tending  to  restrict 
the  owner's  right.  In  France  the  Act  of  July  12,  1909,  authorizes 
the  creation  of  a  "  family  land  "  unattachable  by  creditors.  Any 
land,  not  exceeding  8000  francs  in  value,  may  be  constituted  "  fam- 
ily land."  The  creation  is  effected  by  a  notarial  declaration,  a 
will,  or  gift.  The  creation  of  the  "  family  land",  which  is  sub- 
jected to  a  certain  publicity,  must  be  ratified  by  a  justice  of  the 
peace  and  recorded  within  the  month  following  the  ratification. 
Prior  creditors  may  preserve  their  rights  by  filing  their  claims. 
Subsequent  creditors  can  attach  neither  the  land  itself  or  its  fruits. 
The  owner  loses  the  right  to  mortgage  it,  while  preserving  his  right 
to  alienate  it,  or  to  renounce  the  effect  of  the  law  within  certain 
limits. 

The  "  hofrecht  "  is  an  institution  intended  to  facilitate  the  un- 
divided transmission  of  rural  property.  Like  the  "  homestead  "  it 
aids  in  the  preservation  of  the  estate,  but  instead  of  operating 
during  the  life  of  its  creator,  it  produces  no  effect  until  his  death. 
In  certain  parts  of  Germany,  notably  Hanover,  the  farm  ("  hof  ") 
is  not  divided  among  the  descendants  ;  it  is  given  as  a  whole  to  a 
1  "Cours  d'ficonomie  politique",  Vol.  Ill,  p.  471. 
162 


CHAP.    IV]  CHANGES    IN    FAMILY   LAW  [§  6 

favored  heir  called  "  anerbe."  Certain  laws  give  the  father  the 
right  to  designate  this  heir.  Others  leave  the  choice  to  the  children 
and,  in  case  of  disagreement,  to  the  "  family  council."  Most  laws 
expressly  name  the  eldest  son,  and  in  the  absence  of  sons,  the  eldest 
daughter ;  a  few,  on  the  other  hand,  favor  the  youngest.  Ordi- 
narily the  system  of  the  "  hof  "  is  conditioned  upon  a  declaration 
of  intention  by  the  father ;  he  must  make  his  purpose  known  by 
describing  the  property  which  he  would  exempt  from  partition 
upon  a  special  register  called  the  "  hofrolle."  The  German  Civil 
Code  has  allowed  these  local  particularities  to  survive  in  the  law 
of  rural  inheritance,  leaving  it  to  the  States  of  the  Empire  to 
legislate  upon  the  matter. 

Lastly,  "  arrondirung ",  or  enforced  exchange,  proposes  to 
prevent  an  excessive  division  of  land.  It  is  a  means  by  which  the 
administrative  power  of  the  government  unites  in  one  whole  all 
the  lands  of  a  municipality,  and  then  allots  to  each  proprietor  an 
unbroken  domain  corresponding  in  value  to  the  numerous  and 
scattered  lots  which  had  previously  belonged  to  him. 

Without  discussing  these  institutions,  we  admit  that  the  reforms 
seem  to  us  difficult  of  application  or  but  slightly  effective.  There 
was  a  time  when  much  interest  centred  in  the  "  homestead."  The 
article  by  Paul  Bureau,  the  reports  and  notices  of  Levasseur,1  and 
the  discussions  by  the  "  Societe  d'Economie  Sociale  ",2  have 
shown  beyond  doubt  that  the  enthusiastic  partisans  of  this  institu- 
tion had  many  illusions  about  it.  The  reform  runs  the  risk  of 
being  illusory  if  restricted,  as  in  the  French  Law  of  1909,  to  declar- 
ing the  property  unseizable,  without  taking  from  the  owner  his 
right  of  alienation.  If  the  law  goes  so  far  as  to  declare  an  absolute 
inalienability,  it  opens  the  way  to  very  serious  disadvantages.  A 
sort  of  marriage  portion  system  is  created,  extending  to  the  prop- 
erty of  the  husband,  which  deprives  the  very  person  whom  it  is 
intended  to  protect  of  credit  and  initiative  and  every  sense  of 
responsibility,  and  yet  renders  the  services  of  the  lawyer  more 
indispensable  and  onerous. 

The  "  hofrecht  "  would  arouse  in  our  country  those  protests  that 
have  always  been  provoked  by  efforts  to  restore  the  right  of  the 
eldest  son.  Experience  proves  that  this  sytem  is  only  possible 
when  it  conforms  to  tradition  and  is  acceptable  to  general  opinion. 

Finally,  the  system  of  enforced  exchange  may  be  possible  in 
Germany  where  the  people  are  accustomed  to  a  patriarchal  form  of 

1  "Academie  des  sciences  morales",  Vol.  XLII  (2d  half,  1894),  p.  558. 

2  "Reforrne  sociale"  (2d  half.  1894),  pp.  71  and  226. 

1G3 


§  6]  PART   I      READJUSTMENT   OF  LAW  [Chap.    IV 

government  and  where  the  idea  of  collective  ownership  has  left 
important  traces.  We  need  but  little  acquaintance  with  the 
French  peasant  to  estimate  the  resistance  that  such  a  measure 
would  surely  excite  amongst  us. 

§  7.  Restoration  of  Parental  Testamentary  Power.  —  We  shall 
not  delay  long  over  the  study  of  the  numerous  projects  which  have 
aimed  to  restore  the  authority  of  the  father.  We  may  say,  with- 
out enumerating  all,  that  they  consist  chiefly  in  enlarging  the 
disposable  portion  of  the  estate,  in  granting  the  liberty  to  effect 
family  arrangements,  and  in  the  reestablishment  of  disinheritance. 

(1)  Enlargement  of  Disposable  Portion.  —  We  have  already  dis- 
cussed the  problem  of  enlarging  the  disposable  portion.  The 
reform  would  seem  futile,  were  it  possible ;  for  the  disposable  por- 
tion is  no  longer  taken  advantage  of  to-day.  The  ideal  of  equality 
has  so  entered  into  our  customs  that  the  father  would  not  exercise 
the  powers  given  him.  In  addition,  the  reform  is  impossible,  be- 
cause it  is  too  manifestly  contrary  to  public  sentiment.  A  de- 
mocracy founded  on  equality  will  always  pronounce  consistently 
against  such  a  measure.  As  Laveley  said,1  there  is  incompatibility 
between  democracy  and  the  testamentary  power. 

(2)  Liberty  of  Family  Arrangement.  —  Under  the  rather  vague 
title  of  "  liberty  of  family  arrangement  "  is  understood  the  power 
given  the  father,  on  leaving  to  his  children  an  undivided  reserve,  to 
take  all  the  necessary  precautions  to  secure  an  easy  regulation  of 
his  succession. 

Witli  this  object  the  Civil  Code  introduced  partition  by  the 
ascendant,  permitting  the  father  to  effect  the  distribution  of  his 
property  by  donation  or  will.  Much  was  hoped  of  this  institution. 
It  was  thought  that  in  many  cases  the  disadvantages  inherent  in 
the  law's  partition  of  an  inheritance  would  be  avoided.  This 
hope  has  too  often  proved  vain. 

Instead  of  insuring  the  comfort  of  the  last  years  of  the  parent  who 
has  despoiled  himself  during  lifetime  for  his  children's  benefit,  his 
partition  abandons  him  to  their  ingratitude.  The  heart-breaking 
situation  of  the  peasant  who  has  distributed  his  property  and  is 
reduced  to  beg  for  the  modest  income,  reserved  to  himself  but 
unpaid,  or  who  (and  this  is  indeed  worse)  must  support  the  bitter- 
ness ;iik1  humiliation  of  a  life  in  common  with  them,  has  often 
been  described.     It  is  unfortunately  not  the  exception. 

Ami  :it  the  same  time,  i1  seems  that,  far  from  avoiding  litigation,  a 

1  "  \jC  tfouvernement  dans  la  democratie  ",  Vol.  I,  bk.  VI,  chap,  xn,  p. 
307. 

164 


Chap.    IV]  CHANGES   IN    FAMILY   LAW  [§  7 

distribution  by  the  parent  is  best  fitted  to  excite  it.  We  may  judge 
of  this  by  the  number  of  cases  to  which  it  has  given  rise  and  by  the 
important  space  that  it  always  occupies  in  the  law  reports.  We 
have  to  recognize  that,  in  the  actual  state  of  legislation  and  deci- 
sions, this  mode  of  partition  offers  no  security.  No  matter  with 
what  good  faith  it  is  performed,  it  does  not  escape  the  risk  of  being 
invalidated.  A  consequence  is  the  ruinous  expense  of  lawyers' 
fees,  the  failure  of  credit  in  the  donor,  or  the  destruction  of  the 
rights  of  third  persons. 

Of  the  two  evils  pointed  out,  the  first  results  from  the  institution 
itself,  whatever  its  mode  of  organization.  It  has  ever  been  a  sub- 
ject of  criticism,  but  it  will  not  be  by  reforming  the  law  that  the 
evil  will  be  remedied.  The  legislator  has  done  everything  possible 
by  subjecting  distribution  "inter  vivos"  to  the  ordinary  grounds 
for  revocation  of  gifts,  that  is,  ingratitude  and  failure  to  carry  out 
the  attaching  trusts.    The  rest  must  be  a  reform  in  conduct. 

The  second  evil  is  avoidable.  But  the  courts  seem  to  have  set 
themselves  to  aggravate  it.  Without  entering  into  detail,  let  us 
review  a  few  of  the  rules  of  their  decisions. 

The  first  requires,  as  a  condition  of  validity,  the  observation  of 
Articles  826  and  832  of  the  Civil  Code,  which  provide  that,  so  far 
as  possible,  the  same  quantity  of  movables  and  immovables  or 
choses  in  action,  or  securities  of  like  nature  or  value,  should  be 
apportioned  to  each  lot.  Thus  an  arrangement  by  which  a  father 
gives  all  his  lands  to  one  child,  charging  him  writh  the  payment  of 
sums  to  his  brothers  and  sisters,  constitutes  a  ground  for  annulling 
such  a  partition.1 

A  second  and  recent  rule  prolongs  the  insecurity  of  a  distribu- 
tion "  inter  vivos  "  by  fixing  the  date  from  which  all  actions  to  annul 
may  be  brought,  and  from  which  the  prescriptive  period  runs,  as 
that  of  the  parent's  death. 

Thirdly,  in  case  of  the  invalidation  of  a  distribution  on  grounds  of 
fraud,  the  rule  declares  that  the  existence  of  fraud  must  be  tested 
by  the  value  of  the  property,  not  at  the  time  of  the  gift,  but  at  the 
moment  of  the  parent's  death.  Thus,  one  of  the  several  donees, 
who  received  a  portion,  strictly  equal  to  the  portions  of  the  others 
but  later  suffering  a  depreciation  by  some  accident,  has  a  valid 
claim  for  rescission. 

All  these  causes  of  uncertainty  may  be  directly  ascribed  not  to 

the  law  itself,  but  to  the  manner  of  its  application.     As  it  is  hardly 

possible  to  look  for  a  change  of  view  by  the  courts,  the  demands  of 

1  Cf.  Cassation,  Feb.  25,  1878;   Dalloz,  1878,  1,  449. 

165 


§  7]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

Le  Play's  school  of  publicists,  who  have  insistently  sought  legisla- 
tive reform,  seem  to  us  wholly  justified. 

Would  it  not  be  preferable  to  go  still  farther  and  (with  Claudio 
Jannet)  abolish  the  rescission  of  contracts  affecting  a  future  in- 
heritance and  permit  the  heir  to  the  reserve,  at  the  will  of  the  de- 
cedent, to  be  allotted  a  reserve  consisting  of  specific  property  or 
money?  A  contract  affecting  a  future  inheritance,  said  Jannet, 
may  be  useful  in  facilitating  the  marriage  of  daughters  or  in  en- 
couraging emigration.  "  A  sum  of  money,  given  twenty  or  thirty 
years  before  a  parent's  death,  has  far  more  value  to  a  newly  estab- 
lished household  or  to  the  emigrant  than  a  right  of  inheritance,  the 
realization  of  which  is  distant  and  uncertain."  1  We  are  tempted 
to  believe  that  a  gift  given  as  an  advance  adequately  satisfies  such 
needs.  The  practice  of  renouncing  rights  of  inheritance  has  left 
such  unpleasant  recollections,  and  encouraged  so  many  odious  cal- 
culations, that  its  reestablishment  seems  in  no  way  desirable. 

On  the  other  hand,  we  could  not  see  without  apprehension  the 
introduction  into  our  law  of  the  principle  of  the  German  Civil 
Code,  by  which  the  reserve  is  demandable,  not  in  specific  property, 
but  in  value.  Is  it  not  practising  a  sort  of  exclusion  of  a  child  to 
treat  him  not  as  an  heir  but  as  a  creditor  who  is  got  rid  of  with  a 
little  money  ?  Would  it  not  suffice  to  recognize  a  father's  right  to 
allott  to  each  child  the  portion  which  seems  most  suitable?  For 
the  legislator,  the  problem  consists,  therefore,  not  in  abolishing  the 
distribution  "inter  vivos",  but  in  simplifying  it  and  rendering  it 
less  onerous.  We  regard  as  very  fortunate  from  this  point  of  view 
the  partial  reform  introduced  by  the  Law  of  November  30,  1894, 
governing  tenements  for  the  poor.  That  law  puts  a  limitation 
upon  the  rule  that  each  heir  may  always  demand  immediate  parti- 
tion. It  permits  the  allotment  of  the  house,  after  appraisal,  to  the 
surviving  husband  or  wife,  or  to  one  of  the  heirs,  even  if  there  are 
among  them  persons  lacking  legal  capacity. 

(3)  Disinheritance.  —  One  of  the  severest  criticisms  directed 
against  the  rule  requiring  a  reserve  is  that  it  releases  the  son  of  all 
obligation  of  respect  or  gratitude,  by  vesting  him,  regardless  of  his 
behavior,  with  the  certainty  of  some  day  coming  into  his  parents' 
fortune,  lie  may  with  impunity  neglect  all  his  duties  toward 
them,  use  them  in  the  basest  manner,  humiliate  them  shamefully; 
but  it  matters  not  ;   he  remains  their  heir. 

The  3ole  means  of  ending  this  scandal  is  to  reestablish  some  of  the 
causes  of  disinheritance  recognized  by  the  early  law.     The  draft  of 
1  "Le  socialisme  d'Etat  ",  p.  475. 
166 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  8 

the  Civil  Code  preserved  disinheritance  in  a  certain  measure,  by 
permitting  at  least  an  (unsanctioned)  exclusion  of  children  that 
were  "  notoriously  dissipated  " ;  and  there  are  still  several  text- 
writers,  among  those  who  defend  the  reserve,  who  are  not  hostile 
to  the  principle  of  disinheritance  for  cause. 

We  believe  that  it  would  be  at  least  desirable  to  increase  materi- 
ally the  number  of  instances  where  an  heir  might  be  legally  de- 
clared disqualified  to  inherit.  Several  causes  of  disinheritance 
recognized  by  foreign  codes  l  could  be  transformed  into  disquali- 
fications to  inherit.  They  would  perhaps  be  the  condition  and 
consequence  of  marriage  reform ;  while  freeing  it  from  family 
pressure,  while  releasing  the  son  from  the  necessity  of  having 
the  parents'  consent,  the  latter  would  be  allowed  to  leave  him 
nothing. 

Our  conclusions  may  appear  very  modest  in  their  recommenda- 
tions. We  do  not  claim  that  we  envy  nothing  of  the  past,  but 
we  do  believe  that  it  cannot  be  revived. 

The  family  has  felt  very  deeply  the  influence  of  those  principles 
of  equality  and  liberty  that  have  modified  society  itself ;  and  that 
is  why  the  question  of  testamentary  liberty  has  always  been  con- 
sidered a  political  question  in  France.  Many  measures,  in  them- 
selves good,  but  having,  or  appearing  to  have,  as  their  object,  a 
return  to  early  family  organization,  would  meet  with  unpopularity 
and  provoke  an  irresistible  current  of  opinion  against  them. 

III.    The  Corporation  and  the  Family 

§  8.  Results  of  the  Corporation.  —  During  the  1800  s,  the  cor- 
poration has  become  the  instrumentality  of  large-scale  industry. 
By  the  division  and  limitation  of  liability,  and  by  its  appeal  to  the 
public  at  large,  it  has  made  possible  the  concentration  of  capital. 
For  gigantic  railroad  undertakings,  canals,  factories  employing 
thousands  of  workmen,  it  has  furnished  the  resources  unprocurable 
through  partnerships  of  persons.  Through  the  expectancy  of  a 
rise  in  value  of  the  stock,  and  the  facility  offered  to  market  it,  this 
form  of  company  has  awakened  the  spirit  of  speculation.  To  the 
economists  of  the  liberal  school  it  appeared  as  the  final  form  of 
industrial  organization.  But  against  this  exaggerated  admiration, 
a  reaction  has  gradually  set  in.  It  has  become  apparent  that 
this  sort  of  association  was  imperfect  in  many  ways.     It  no  doubt 

1  Civil  Codes,  Spain,  Art.  853 ;  Portugal,  Art.  1876 ;  Germany,  Art. 
2333  ;   Switzerland,  Art.  477. 

167 


§  8]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

answered  the  needs  of  the  moment  better  than  the  others.  One  is 
surprised,  however,  on  reflection,  that  it  should  have  been  able  to 
produce  results  of  such  importance. 

Has  it  brought  workingmen  and  capitalists  together  upon  any 
common  basis,  in  so  far  as  the  former,  as  Gide  says,1  are  "  laboring 
in  an  enterprise  whose  profits  they  do  not  reap,  the  latter  reap- 
ing the  profits  from  an  enterprise  in  which  they  do  not  labor  "  ? 
Properly  speaking,  there  is  no  association  among  the  stockholders 
themselves.  They  are  strangers  to  each  other,  knowing  nothing 
of  each  other,  often  even  knowing  nothing  of  the  enterprise  in 
which  they  are  concerned. 

Xot  only  does  the  corporation  involve  a  great  loss  of  forces,  in 
that  it  does  not  realize  a  reconciliation  or  fusion  of  interests,  but 
it  is  also  notably  dangerous.  Who  shall  say  what  abuses  it  has 
committed,  what  ruin  it  has  accumulated  ?  "  Whatever  may  be 
the  social  advantages  introduced  by  the  stock  comany,"  wrote 
Ihering,2  "  the  malediction  it  has  raised  exceeds  its  praise.  The 
disasters  it  has  brought  to  private  fortunes  are  graver  than  if  fire, 
water,  famine,  earthquake,  war,  and  invasion  had  been  conjured 
up  to  ruin  the  national  wealth."  Paul  Leroy-Beaulieu 3  judges 
them  no  less  severely.  "  What  once  were  in  the  earliest  Middle 
Ages  the  great  companies  of  adventurers  and  brigands,  ransoming 
merchants  and  pillaging  the  country,  the  stock  company  is  to-day. 
Not  all,  no  doubt,  but  many  of  them ;  and  they  proceed  with 
more  security,  more  impunity,  more  leisure  and  enjoyment  for 
their  promoters  and  directors.  It  is  a  legal  and  methodical  method 
of  pillage." 

If  the  stock  company  has  made  easy  the  saving  and  investment 
of  money  in  the  labor  of  others,  it  cannot  be  disputed  that  it  has 
squandered  and  dissipated  an  enormous  mass  of  capital.  There 
has  been  no  complete  study  of  this,  but  innumerable  particular 
instances  may  be  cited.  The  Panama  Company  drew  from  the 
country's  savings  about  fourteen  hundred  million  francs;  it  ex- 
pended in  useful  work  about  a  half,  and  the  stockholders  were  to  be 
congratulated  when  the  enterprise  was  taken  over  by  the  American 
Government  for  two  hundred  millions.  An  analysis  has  been 
made  of  a  loan  of  one  hundred  and  fifty-nine  million  francs  con- 
tracted by  Honduras.  The  actual  work,  which  was  the  pretext  for 
the  loan,  consumed  only  eighteen  millions ;  bankers'  commissions 

1  "L'Avcnir  de  la  cooperation  ",  p.  9. 

2  "Evolution  <lu  droit"  (French  trans,  by  Meulenaere),  p.  152. 
*  "L' Eeonomistc  I'nuicais  ",  July  3,  1881. 

1G8 


CHAP.    IV]  CHANGES   IN    FAMILY   LAW  [§  9 

and  publicity  absorbed  seventy ;  it  has  not  been  possible  to  ascer- 
tain to  what  the  remaining  seventy-one  millions  was  put.1 

§  9.  Effects  on  the  Family.  —  What  influence  has  the  stock 
company  had  on  the  family?  It  has  given  rise  among  property 
holders  to  a  differentiation  of  class.  On  the  one  hand  is  an  amor- 
phous class,  scattered,  condemned  to  a  passive  process  of  economy, 
without  initiative,  solicited  by  circulars,  newspapers,  and  banks ; 
when  their  investment  turns  out  well,  they  regard  themselves  as 
privileged  in  having  received  a  small  portion  of  the  profits  ;  should 
it  turn  out  badly,  they  lose  all.  On  the  other  hand,  there  is  a  small 
group,  promoters  and  directors  of  enterprises,  employing  to  their 
profit  the  scattered  forces,  enjoying  uncontrolled  direction,  render- 
ing the  majority  of  the  stockholders  subservient,  and  often  also  the 
technical  management.  A  small  number  of  persons  employed  in 
the  issue  of  securities  along  with  the  corporate  officers  divide  the 
benefits  of  the  management.  Merely  opening  a  financial  almanac, 
we  perceive  the  same  names  repeated  again  and  again  on  most  of 
the  boards  of  directors.  Speaking  of  the  past  only,  a  certain 
Pereire  was  a  director  of  nineteen  companies,  representing  a  capital 
of  four  billions  ; 2  a  single  family  had  in  its  control  fifty  companies. 
In  1863  one  hundred  and  eighty-three  persons  guided  the  destinies 
of  a  number  of  banks,  canals,  and  manufactories  whose  capital 
exceeded  fifty  billions  of  francs.  In  this  way  the  corporation  has 
powerfully  developed  family  influence. 

The  upper  business  class,  especially  of  the  period  about  1830, 
profited  by  the  impulse  given  to  all  these  great  industries.  This 
class  furnished  the  personnel  of  the  direction  of  most  of  the  com- 
panies, and  its  influence  has  survived  the  conditions  that  favored 
it ;  it  persists  even  to-day.  To  this  original  class  has  been  added  a 
new  personnel  borrowed  from  subsequent  periods,  the  Second  Em- 
pire and  the  Third  Republic.  To  each  in-comer  a  small  part  had 
to  be  yielded.  Financial  power,  nevertheless,  still  rests,  in  large 
part,  with  the  early  families,  whose  fortune  is  in  most  instances 
of  fifty  years'  standing.  They  are  in  a  true  sense  families  of 
directors :  father,  father-in-law,  son-in-law,  son,  nephew  pass  from 
one  company  to  another,  sometimes  as  auditors  or  examiners  whose 

1  B.  Malon,  "Le  soeialisme  integral",  Vol.  II,  p.  235,  no.  1. 

2  Georges  Duchene,  "La  speculation  devant  les  tribunaux";  B.  Malon, 
"Le  soeialisme  integral",  Vol.  II,  p.  234.  F.  Delaisi,  in  "La  demoeratie 
et  les  financiers"  (Paris,  1910,  pp.  43-59),  drew  up  a  table  of  what  he 
calls  the  "general  staff"  of  capitalism,  fifty-five  names  in  all,  who  direct 
nearly  all  the  large  banking,  insurance,  transportation  and  mining  enter- 
prises. 

169 


§  9]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

function  is  to  keep  watch  over  the  directors,  though  in  reality  they 
are  chosen  and  named  by  the  latter.  These  purely  empty  func- 
tions, formalities,  represent  practically  no  useful  return  or  labor. 
In  reality  all  that  is  done  is  what  may  be  accomplished  about  a 
table,  listening  to  reports,  engaging  in  discussions  without  prepara- 
tion and  with  a  very  inadequate  knowledge  of  the  business,  and 
a  lack  of  time  and  personal  fitness.  Once  or  twice  a  year,  what 
purports  to  be  an  inventory  is  drawn  up,  amounting  merely  to 
an  enumeration  prepared  by  employees.  Business  relations  are 
formed  with  companies,  created  in  the  interest  of  the  directors, 
to  increase  their  profit  or  their  importance.  We  frequently  see  one 
company  exploited  by  another,  a  factory  by  a  bank,  a  street  rail- 
way by  a  construction  company.  Often  on  a  board  of  directors 
one  or  two  members  in  reality  represent  all  the  rest ;  their  influence 
is  exclusive ;  they  choose  or  set  aside  whoever  is  pleasing  or  dis- 
pleasing to  them.  Sometimes,  in  certain  partnerships  limited  by 
shares,  the  manager  is  named  for  life  with  the  right  to  designate 
his  successor.  A  factory  is  handed  down  like  a  farm,  to  a  relative 
by  blood  or  marriage,  who  may  be  a  total  stranger  to  the  sort  of 
industry  he  is  directing. 

It  is  not  unusual  to  see  a  business  turn  out  badly  or  only  fairly 
for  the  stockholders,  but  very  satisfactorily  for  its  directors. 
Once  a  year  a  meeting  of  the  stockholders  is  called.  It  is  a  mere 
reunion,  often  of  but  a  few  people,  who  do  not  know  each  other, 
have  been  unable  to  concert  any  action,  who  listen  to  the  reading 
of  a  report  informing  them  only  of  what  the  directors  want  them 
to  know;  the  meeting  is  adjourned  by  a  vote  of  approval  and 
congratulation  of  the  directors.  The  stockholders  ask  only  divi- 
dends and  are  fully  satisfied  when  they  receive  them  ;  when  none 
are  paid  and  the  business  begins  to  turn  against  them,  they  content 
themselves  with  hopes  and  expressions  of  sympathy.  Once  in  a 
while  some  effort  at  resistance  is  aroused.  A  discontented  or  un- 
friendly stockholder  interrogates,  demands  explanations.  Or- 
dinarily he  arouses  the  others'  mistrust.  The  president  answers 
deftly  or  sharply ;  when  the  danger  becomes  more  threatening,  the 
board  of  directors  adopts  an  energetic  means  of  defence.  They 
distribute  among  accomplices  large  blocks  of  their  stock,  when  by 
the  by-laws  they  have  only  a  limited  right  to  vote.  By  proxies, 
by  purchases,  by  grouping  holdings,  the  miracle  of  multiplying 
votes  is  performed.  When  the  business  is  a  total  failure,  liquida- 
tion begins,  with  its  train  of  expenses,  its  interminable  details. 
Intelligent  stockholders  carefully  avoid  attending  the  meetings 

170 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  10 

to  which  they  are  called,  saving  themselves  the  time.  At  intervals 
a  few  meagre  dividends  are  distributed ;  the  affair  sinks  into 
oblivion.  Often,  at  the  moment  of  disaster,  feeling  runs  high 
against  the  directors ;  they  are  threatened  with  prosecution  and 
suits.  But  they  have  been  forehanded  and  assigned  all  their 
property.  The  fortune  popularly  attributed  to  them  no  longer 
exists;  it  has  become  liquid,  and  then  vaporous.  The  receivers 
advise  a  compromise,  the  stockholders  end  by  accepting  it. 

Thus  Professor  Thaller's  conclusion  is  justified.  "  One  thing," 
he  says,  "  stands  as  patent  in  the  spectacle  that  the  stock  company 
displays  to  observing  eyes.  The  company  is  fleeced  by  a  handful 
of  financiers  or  business  men  who  behave  toward  the  stockholders 
as  though  they  were  a  gang  of  slaves  under  their  lash,  —  easy  to 
blind  by  prospectuses  or  optimistic  reports,  and  robbed  of  any  real 
share  in  the  enterprise  which  has  been  formed  by  their  capital."1 

§  10.  Proposed  Reforms.  —  Are  these  evils  inherent?  Is  there. 
a  possible  remedy  ? 

The  question  has  frequently  been  studied  and  discussed.  It 
has  been  the  object  of  numerous  legislative  proposals,  reports,  and 
serious  investigations.  An  extra-parliamentary  commission,  ap- 
pointed in  1902,  reached  a  few  very  temperate  conclusions.  The 
reforms  which  it  demanded,  though  timid,  have  not  even  been 
realized.  All  that  was  done  was  to  adopt  a  few  provisions  em- 
bodied in  the  budgetary  law  of  1907  regarding  publicity  in  the  issue 
of  corporate  securities. 

And  so  the  entire  difficulty  remains.  It  is  impossible  to  con- 
sider returning  to  the  system  prior  to  1867,  when  the  creation  of 
stock  companies  was  conditioned  upon  an  antecedent  approval  of 
their  by-laws  by  the  government.  To  place  upon  the  government 
the  responsibility  of  weighing  the  opportunities  and  chances  of 
success  of  the  undertaking,  is  to  impose  upon  it  a  function  for 
which  it  is  not  suited.  Its  judgment  risks  being  arbitrary  and 
prejudiced.  Feeling  itself  responsible  for  failures,  it  will  naturally 
tend  to  be  too  distrustful,  and  to  misconceive  the  value  of  an  in- 
vention or  new  idea.  Would  it  not  at  least  be  possible  to  lessen  the 
evil  of  the  old  system  by  replacing  the  requirement  of  a  prior  ap- 
proval with  a  simple  ratification  ?  According  to  some  the  govern- 
ment, according  to  others  the  courts,  should  inquire  whether  all  the 
essential  formalities  have  been  observed.     Such  a  plan  presents 

1  "De  la  reforme  delaloi  des  societes  par  actions",  in  "Revue  politique 
et  parlementaire "  (Jan.  10,  1903),  p.  91;  "Syndicats  financiers  d'eniis- 
sion",  in  "Annales  de  droit  commercial"  (1911),  pp.  5,  34. 

171 


§  10]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

many  objections.  If  the  examination  is  effective,  we  return 
covertly  and  indirectly  to  the  old  system  of  prior  governmental 
approval,  and  if  limited  to  verifying  the  accomplishment  of  certain 
formalities,  the  ratification  offers  but  a  very  limited  usefulness. 

(1)  Publicity.  —  The  liberal  school  of  economy,  which  opposes 
in  principle  every  restrictive  system  and  accepts  regulation  as  a 
choice  of  evils,  strongly  advocates  publicity ;  publication  "  in 
extenso  "  of  the  by-laws  in  some  predetermined  newspaper ;  dec- 
laration in  the  prospectus  of  the  proportion  of  capital  subscribed 
otherwise  than  in  money;  annual  publication  of  balances.  Cer- 
tainly publicity  is  not  without  advantages.  It  is  especially  useful 
at  the  time  of  the  issue  of  the  stock ;  it  furnishes  information  upon 
the  history  and  cost  of  organization  of  the  undertaking,  the  more 
desirable  in  that  many  enterprises  are  not  thrown  open  to  the 
public,  because  of  the  part  played  by  banks.  However,  we  must 
not  suffer  too  great  illusion.  Fraud  will  not  be  thus  prevented ; 
the  matter  published  will  be  but  partly  true ;  the  real  promoters 
will  at  times  conceal  their  identity  behind  straw-men. 

It  might  be  possible  to  increase  the  powers  of  the  stockholders' 
meeting.  But  from  this  also  we  may  not  hope  too  much.  Improve- 
ment does  not  depend  upon  legislative  reform,  for  frauds  are 
difficult  to  check.  To  prohibit  the  directors  from  participating 
as  stockholders  in  the  meetings  charged  with  the  approval  of  their 
management,  is  to  tempt  the  director,  who  is  a  large  stockholder, 
to  retain  in  his  own  name  only  the  minimum  required  by  the  by- 
laws, and  to  have  the  rest  issued  to  bearer  or  in  the  name  of  a 
friend  who  will  move  him  a  resolution  of  thanks. 

(2)  Expert  Examiners.  —  Professor  Thaller  believes  that  but  one 
reform,  the  appointment  of  expert  examiners,  would  be  productive 
of  practical  results.  "  The  desired  law,"  he  said,  "  must  be  hung 
upon  some  peg.  The  peg  upon  which  the  Law  of  1867  hung  was 
the  liberty  of  organization  of  the  stock  company  ;  that  of  the  Law 
of  1893  was  the  untransferability  during  two  years  of  stock  repre- 
senting subscriptions  other  than  money ;  the  peg  of  the  new  law,  if 
we  are  not  mistaken,  must  be  the  principle  of  expert  examination 
by  disinterested  persons."  1 

Analogous  institutions  already  exist  in  England  and  Germany. 
In  Germany  the  Law  of  1884  and  the  Commercial  Code  of  1897 
provided  for  examiners,  chosen  by  the  chambers  of  commerce  and 
associated  into  a  body.  Their  aim  is  to  supervise  with  competence 
and  independence  the  creation  and  working  of  stock  companies. 
1  "Revue  politique  et  parlementaire "  (Jan.  10,  1903),  p.  124. 

172 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  10 

On  the  organization  of  the  company,  they  verify  the  facts  stated 
in  the  report  to  the  first  stockholders'  meeting ;  if  subscriptions 
have  been  paid  in  other  forms  than  cash,  they  verify  the  appraised 
value.  During  the  life  of  the  company,  they  may  be  appointed 
at  the  annual  meeting,  on  the  request  of  stockholders  representing 
one  tenth  of  the  capital,  to  examine  the  books.  In  England  there 
exist  several  associations  of  expert  accountants.  Their  interven- 
tion is  not  obligatory,  but  they  enjoy  great  public  confidence. 
The  great  commercial  companies  and  houses  have  frequent  re- 
course to  them  to  settle  a  dispute  or  verify  a  financial  situation. 

A  body  very  similar  to  this  has  been  proposed  for  France.  It 
would  constitute  a  new  class  of  administrative  officers.  Some  un- 
certainty exists  as  to  what  powers  would  be  conferred  upon  them 
and  from  whom  they  would  receive  their  power,  State,  courts,  or 
chambers  of  commerce.  Thaller  believes  that  their  intervention 
would  be  especially  useful  on  the  final  and  legal  constitution  of  the 
company,  when  its  securities  are  placed  upon  the  market,  and 
again  at  the  time  when  the  accounts  of  the  directors  are  presented. 
Many  frauds  and  abuses  are  committed  when  the  company  is 
created.  The  law  requires  that  the  capital  be  entirely  subscribed 
and  that  at  least  one  fourth  be  paid  in.  The  promoters  must  go 
before  a  notary  and  declare  that  these  conditions  have  been  ful- 
filled, but  nothing  establishes  the  truth  of  the  declaration.  Stock 
subscriptions  in  property  and  the  privileges  voted  to  certain  stock- 
holders are  examined  by  a  committee  appointed  by  the  first  stock- 
holders' meeting.  After  their  report,  a  second  meeting  is  called  to 
pass  upon  the  appraisals  made.  But  these  precautions  are  quite 
insufficient.  The  committee,  devoted  to  the  promoters'  interests, 
give  an  obliging  approval  of  many  over-valuations  and  unjustifi- 
able preferences.  A  large  distribution  of  special  rights  in  profits 
carries  in  its  train  all  sorts  of  conflicts  of  interests.  Companies 
are  in  this  way  burdened  with  excessive  initial  charges  which  do 
not  allow  them  to  develop  or  sometimes  even  to  survive.  The 
employment  of  expert  examiners  might  serve  to  prevent  these 
abuses,  enlighten  stockholders,  verify  statements,  secure  honest 
appraisals,  and  make  possible  a  fair  weighing  of  the  risks  and 
probable  chances  of  the  new  company. 

Formerly  the  public  appeal  generally  preceded  the  formation  of  a 
company  by  the  opening  of  subscriptions  for  stock.  To-day  pro- 
moters show  a  marked  tendency  to  form  the  concern  out  of  a  small 
coterie.  They  first  divide  the  shares  among  themselves  and  then 
turn  to  the  public  whom  they  get  to  purchase  the  stock  at  a  higher 

173 


§  10]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

price,  keeping  for  themselves  a  more  or  less  large  premium.  Here 
again  the  door  has  been  left  wide  open  for  fraud,  and  an  enterprise, 
in  itself  good,  may  become  objectionable  to  shareholders  when  the 
conditions  have  been  such.  Certainly  it  would  be  desirable  if 
expert  examiners  could  separate  the  true  from  the  false,  place 
affairs  in  their  exact  light,  verify  the  accounts  of  the  company's 
formation  and  keep  the  public  advised.  Lastly,  the  directors  are 
obliged  to  call  annually  a  general  meeting  and  submit  an  account 
of  their  management.  The  resolutions  passed  are  determined  by 
the  showings  of  the  inventory  and  balance.  But  the  inventory 
may  be  falsified  ;  the  balance  sheet  is  always  obscure  and  sometimes 
falsified  ;  the  materials,  merchandise,  accounts  collectible,  may  be 
the  subject  of  overvaluation.  The  only  guarantee  which  the  stock- 
holders have  is  the  control  exercised  by  the  board  of  examiners  of 
accounts,  named  the  preceding  year.  But  their  nomination  is 
made  upon  proposal  of  the  board  of  directors.  The  board  of 
examiners  of  accounts,  the  function  of  which  is  often  merely  to 
serve  as  an  entrance  to  the  board  of  directors,  has  not  the  authority 
or  independence  that  it  should  have.  A  verification  by  experts 
might  be  more  serious. 

It  is  our  hope,  therefore,  that  the  experiment  will  be  made  in 
France.  But  experience  alone  will  justify  our  passing  judgment. 
With  how  much  conscience  and  ability  would  the  position  be  ful- 
filled ?  It  would  certainly  be  difficult  to  gather  together  in  a  day 
a  body  of  talent  both  honest  and  capable.  We  cannot  help  but  feel 
regret  at  the  creation  of  a  new  class  of  governmental  officers  or 
intendants,  imposing  fresh  charges  upon  companies  for  their  serv- 
ices, when  their  administration  is  already  so  burdensome.  How- 
ever, some  action  is  necessary.  As  Schmoller  has  observed,  there 
is  in  the  abuses  committed  by  stock  companies  a  form  of  economic 
injustice  that  ought  not  to  be  tolerated.  No  doubt  a  majority  of 
these  abuses  inheres  in  the  institution  itself,  in  the  nature  of  this 
sort  of  association.  These  at  least  must  be  corrected,  while  waiting 
for  the  time  when  they  may  be  replaced  or  when  we  can  do  without 
them. 

IV.    The  Industrial  System  and  the  Family 

§11.  Present  Industrial  Organization.  —  The  characteristic 
sign  of  our  present  industrial  organization  is  the  assembling  of  the 
workmen  in  great  factories,  run  by  motive  power.  In  these  fac- 
tories the  workman  has  become  a  subsidiary,  an  auxiliary  to  the 

174 


CHAP.    IV]  CHANGES   IN    FAMILY    LAW  [§11 

machine.  Attention  and  nervous  force  is  demanded  of  him  rather 
than  physical  force.  For  that  reason  work  by  women  and  children 
has  been  utilized,  and  their  position  has  become  the  more  important 
in  that  they  are  content  with  a  smaller  salary,  serving  as  a  mere 
complement  to  the  adult  worker's.  We  do  not  mean  that  the  labor 
of  women  and  children  is  an  absolutely  new  phenomenon.  Numer- 
ous instances  collected  by.  Roscher  and  LePlay  show  that  "  the 
imposing  of  excessive  tasks  upon  women  and  children  long  ante- 
dated machinery."  J  But,  until  the  rise  of  large-scale  industry, 
their  employment  remained  exceptional  in  character.  From  the 
latest  statistics,  the  census  of  industries  and  professions,  we  learn 
that  the  proportion  of  married  persons  in  the  entire  body  of  workers 
and  employees  is  42.6  per  cent  for  men  and  23.8  per  cent  for  women. 
Experience  soon  showed  that  the  law  could  not  rest  indifferent 
to  such  a  situation.  Women  and  children  too  often  became  victims 
in  being  subjected  to  excessive  work,  or  to  work  at  too  tender  an 
age,  or  during  prolonged  periods,  endangering  their  life  or  their 
health.  Numberless  sad  evidences  of  these  abuses  have  been 
collected  in  Belgium,  where  the  principle  of  liberty  of  contract,  of 
"  laissez  faire",  continued  to  exist  until  the  Act  of  December  13, 
1889.  That  law  was,  in  fact,  adopted  as  a  result  of  the  official 
investigation  that  had  revealed  the  abuses.  The  report  of  this 
investigation  mentions  cases  of  children  of  five  or  six  years  of  age 
employed  in  tobacco  factories ;  and  others,  but  little  older,  who 
worked  twelve,  thirteen,  and  fourteen  hours  a  day.  A  witness  is 
reported  to  have  testified  that  he  had  seen  children  (their  names  are 
given)  "  working  from  fifteen  to  eighteen  hours  a  day  at  the  age 
of  ten  "  ;  and  he  added  :  "  No  one  knows  how  many  died  as  a  result 
of  those  fifteen  to  eighteen  hours  of  work  in  the  suffocating  dust  of 
the  linen." 2  From  the  same  report  we  read :  "A  manager 
of  a  glass  factory,  president  of  the  association  of  Belgian  Glass 
Workers  at  Charleroi,  admitted  that  in  his  industry  apprentices 
of  fourteen  and  sometimes  younger  worked  twenty-four  hours 
without  interruption.  Another  manufacturer,  director  of  a  cotton 
mill,  testified  that  the  legs  of  children  were  sometimes  deformed 
because  they  had  to  remain  standing  during  the  long  period  of  their 
work.  Senator  Lammens,  member  of  the  commission,  declared 
that,  from  a  calculation  made  by  him,  it  appeared  that  the  children 

1  P.  Leroy-Beaulieu,  "Traite  d'economie  politique",  Vol.  I,  p.  431. 

2  Investigation,  Vol.  II,  D,  nos.  2,337,  2,339,  cited  by  Raoid  Jay, 
"Le  travail  des  enfants  et  des  femmes  dans  l'industrie",  and  "Protection 
legale  du  travail"  (1910),  p.  31. 

175 


§   11]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

employed  by  brick  makers,  whose  task  was  to  pile  the  manufac- 
tured bricks  given  them,  walked  in  so  doing  as  much  as  forty 
kilometers  a  day."  l 

Similar  abuses  and  excesses  were  shown  to  exist  in  the  work  by 
women.  In  1844  Lord  Ashley  declared  in  the  House  of  Commons 
that  out  of  418,590  workers,  242,000  were  women,  half  of  whom  had 
not  attained  eighteen  years  of  age.  Rapidly  worn  out,  after 
thirty-five  years  of  age  such  women  were  unfit  for  service.  If 
married,  they  work  in  the  shops  until  the  last  hour  before  child- 
birth and  return  the  following  day.  The  children  are  confided  to 
elderly  aunts  or  to  grandmothers,  who  have  not  raised  their  own 
children  and  know  nothing  of  the  cares  needed.  The  tears  of  these 
working  women  are  assuaged  with  opium.  The  want  of  sanitary 
precaution  in  artificial  nursing  causes  a  high  rate  of  mortality.2 

§  12.  State  Intervention.  —  Under  such  conditions  it  is  evident 
that  the  employment  of  women  and  children  is  destroying  the 
workingman's  family ;  home,  family  life,  no  longer  exist.  As 
some  of  its  members  set  out  for  the  factory,  others  return,  their 
task  ended.  The  wife  and  mother  can  be  of  no  help  in  the 
home ;  she  cannot  cook,  wash,  mend,  nor  watch  and  raise  her 
children. 

It  is  the  spectacle  of  such  abuses  that  has  inspired  a  progressive 
regulation  of  labor.  Reforms  have  taken  place,  one  after  another, 
singly  and  reluctantly.  Often  ineffective  or  incomplete,  they  have 
made  frequent  amendments  necessary. 

The  legislator  intervenes  to  impose  certain  conditions  relative  to 
the  age  of  entering  employment,  the  nature  and  the  duration  of 
the  work.  These  conditions  are  obligatory  ;  they  constitute,  there- 
fore, so  many  derogations  from  the  principle  of  liberty  of  contract. 
Everyone  to-day  admits  the  justification  of  the  law's  intervention 
in  protection  of  minors.  But  still  a  division  of  opinion  becomes 
apparent  when  it  is  a  question  of  regulating  the  working  conditions 

1  Investigation,  Vol.  II,  cited  by  Raoul  Jay,  "Lois  nouvelles"  (1889), 
I,  p.  450. 

2  For  English  investigations,  cf.  the  well-documented  article  by  Jacques 
Dumas,  "Les  lois  ouvrieres  devant  le  Parlement  anglais",  in  ''Revue 
d'economie  politique"  (1896).  Dumas  cites  from  the  investigations  the 
depositions  of  several  children.  Of  these  we  quote  one  taken  at  random, 
p.  31  :  "  Elizabeth  Bentley  ...  I  began  to  work  when  I  was  six  years  old. 
In  the  shop  where  I  was,  we  worked  from  5  o'clock  in  the  morning  until 
9  o'clock  in  the  evening  when  pressed.  In  ordinary  times,  the  hours  wore 
from  6  o'clock  in  the  morning  until  7  o'clock  in  the  evening.  They  let  us 
have  forty  minutes  for  our  noon  meal,  but  the  work  did  not  stop  for  break- 
fast or  for  lunch.  .  .  .  When  there  was  a  great  deal  to  do,  we  could  not 
even  eat,  and,  if  we  did  not  take  our  food  away  with  us,  the  foreman  took 
it  to  feed  his  pigs." 

176 


Chap.   IV]  changes  in  family  law  [§  12 

of  women,  and  it  is  naturally  the  regulation  of  the  employment  of 
adults  that  meets  the  greatest  difficulties. 

(1)  Child  Labor.  —  The  development  and  importance  of  this 
body  of  law,  to  which  has  been  given  the  name  of  "  labor  legisla- 
tion", is  well  shown  by  a  comparison  of  the  different  measures 
aimed  to  fix  the  age  of  the  entrance  of  children  into  factories.  The 
earliest  law,  that  of  1841,  timidly  fixed  the  minimum  age  at  eight 
years.  Such  a  measure  seems  miserably  inadequate  to-day. 
When  in  1868  Jules  Simon  published  his  book  "  L'Ouvrier  de  huit 
ans",  the  title  alone  was  an  appeal  to  public  compassion.  The 
law  of  1874  effected  a  great  progress  by  prohibiting,  as  a  general 
rule,  the  industrial  employment  of  children  before  the  age  of 
twelve.  It  was  authorized  exceptionally  at  ten  years,  but  only  in 
certain  industries  and  for  a  day  of  six  hours,  broken  by  a  period  of 
rest.  The  Law  of  1892  took  a  further  step  in  the  same  direction. 
Article  2  declared  that  children  should  not  be  employed  or  ad- 
mitted into  shops  before  thirteen  years  of  age. 

There  is  evidently  something  arbitrary  in  all  these  provisions. 
We  perceive,  nevertheless,  that  this  is  due  to  endeavoring  to  rec- 
oncile the  regulations  as  to  the  hours  of  labor  of  children  with  those 
of  the  law  upon  obligatory  education.  The  child  is  not  allowed  to 
enter  the  factory  until  he  is  released,  by  reason  of  his  age,  from  all 
the  obligations  imposed  by  the  school  law.  But  this  rule  is  subject 
to  two  classes  of  exceptions.  If  primary  and  manual  instruction 
are  given  in  the  same  building,  the  child  under  thirteen  years  may 
be  put  to  manual  labor  provided  that  his  period  of  work  does  not 
exceed  three  hours.  We  know  that  after  eleven  years  of  age  the 
child  may  be  authorized  to  leave  school  if  he  has  obtained  his 
certificate.  In  the  course  of  the  discussion  upon  the  Law  of  1892, 
Loreau,  a  deputy,  proposed  that  children  over  twelve  years,  possess- 
ing certificates  of  study,  be  admitted  into  the  factory.  The  amend- 
ment was  presented  as  a  sort  of  compromise.  It  was  opposed, 
though  in  vain,  by  de  Mun,  who  pointed  out  that  a  scholastic 
examination  should  not  serve  as  an  exceptional  reason  to  authorize 
work  prematurely,  but  that  on  the  contrary  both  constituted 
dangers,  a  double  source  of  over-strain.  The  amendment  was 
adopted.1 

While  permitting  these  exceptions  (the  last  of  which  seems  to  us 
regrettable),  the  authors  of  the  Law  of  1892  desired  by  a  precau- 
tionary measure  to  stiffen  the  guarantee,  often  insufficient,  secured 
by  the  age  of  admission.     A  child,  even  at  thirteen,  may  be  unde- 
1  Law  of  Nov.  2,  1892,  Art.  2,  §  2. 
177 


§  12]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

veloped  or  in  a  condition  of  health  such  that  work  in  a  factory 
would  be  dangerous  or  fatal.  To  avoid  this  danger,  the  law  de- 
clares that  no  child  less  than  thirteen  may  be  admitted  to  work 
unless  provided  with  a  certificate,  testifying  to  his  physical  ability, 
secured  from  the  physician  in  charge  of  this  department  of  public 
service.  Moreover,  the  inspectors  of  labor  may  always  require  a 
medical  examination  of  any  child  under  sixteen  years,  already  ad- 
mitted to  an  industrial  establishment.  They  have  the  power  to 
require  the  dismissal  of  a  child  from  the  establishment  upon  advice 
from  the  physician. 

Little  can  be  said  as  to  the  nature  of  the  work  upon  which  chil- 
dren may  be  employed.  Present  legislation  contains  two  sorts  of 
prohibitions.  In  the  first  place,  administrative  rules,  that  con- 
form with  the  law,  enumerate  a  certain  number  of  dangerous  em- 
ployments in  which  minors  and  women  may  not  engage.  In 
addition,  as  a  general  rule,  the  law  prohibits  night  work.1  The 
second  limitation  deals  with  the  duration  of  the  work  and  regulates 
the  number  of  hours  during  which  children  may  be  employed. 
The  Law  of  1892  had  adopted  a  rather  complicated  system.  In 
the  case  of  children  of  less  than  sixteen  years  the  actual  duration 
of  the  work  could  not  exceed  ten  hours  out  of  the  twenty-four; 
between  sixteen  to  eighteen  years  the  period  increased  to  eleven 
hours,  without  being  permitted  to  exceed,  however,  sixty  hours  per 
week.  Finally,  for  girls  between  eighteen  and  twenty-one  years 
and  married  women  of  any  age,  the  maximum  was  eleven  hours. 

In  actual  practice  this  system  did  not  work  as  well  as  was  hoped. 
Difficulties  immediately  arose  in  its  application.  The  complexity 
of  the  law  was  a  great  annoyance  to  conscientious  employers,  and 
permitted  the  less  conscientious  to  evade  easily  the  supervision 
of  the  inspectors.  In  many  establishments  the  working  day  was 
fixed  uniformly  at  eleven  hours  without  regard  to  the  ten-hour  limit 
established  in  favor  of  the  youngest  class  of  children.  The  reform 
realized  by  the  Law  of  March  30,  1900,  simplified  the  conditions  of 
labor  by  deciding  that  the  working  day  for  minors  under  eighteen 

1  The  prohibition  of  night  work  applies  to  all  women,  without  regard  to 
age,  but  only  to  boys  under  eighteen  years.  Night  work  is  held  to  be  all 
work  done  between  9  p.m.  and  5  a.m.  The  law  allows  large  indulgences 
in  respect  of  night  work  to  certain  classes  of  industries  (Decree,  July 
If),  1893).  One  of  the  most  grievous  of  these  exceptions  was  that  called' 
"de  la  veillee"  (evening  work),  which  authorized  supplementary  hours 
of  labor  till  11  p.m.  at  certain  periods  of  the  year,  the  total  duration 
of  which  might  not  exceed  sixty  days.  This  practice  of  "evening  work", 
the  abuses  of  which  had  often  been  remarked,  was  suppressed  by  the 
Decree  of  February  17,  1910;  at  the  present  time  it  only  exists  in  estab- 
lishments making  garments  for  mourning. 

178 


CHAP.    IV]  CHANGES   IN    FAMILY    LAW  [§  12 

and  married  women  might  not  exceed  a  period  of  eleven  hours. 
This  has  been  reduced  to  ten  and  a  half  hours  in  1902,  and  to  ten 
hours  in  1904.  The  same  limitation  is  applicable  to  men  working 
with  women  and  minors  on  the  same  premises.1  The  children  were 
sacrificed,  for  the  time  being ;  they  were  the  price  paid  for  an  im- 
portant and  ample  restriction  to  the  working  hours  of  adults. 

The  law  not  only  limits  the  duration  of  the  working  day  but  is 
also  careful  to  specify :  first,  that  the  work  shall  be  broken  by  one 
or  more  periods  of  rest,  the  total  of  which  may  not  be  less  than  one 
hour,  and  which,  in  mines  and  factories  requiring  a  continuous  fire, 
shall  be  granted  at  the  same  time  to  all  persons  coming  under  its 
protection  ;  second,  for  all  workmen  engaged  together  in  the  same 
shop,  the  hours  for  beginning  and  ending  work,  and  for  rest,  shall 
come  at  the  same  time.2 

(2)  Exceptions.  —  The  Law  of  1841  was  exclusively  occupied 
with  large  industries,  leaving  the  small  shop  free  from  any  super- 
vision. The  Law  of  1874  on  the  contrary  had  a  much  more  general 
application.  It  reached,  in  principle,  all  establishments  where 
children  were  employed  industrially.  Certain  kinds  of  establish- 
ments, however,  enjoyed  exemption.  There  were  the  family 
workshop,  charitable  or  technical  institutions,  and  State  institu- 
tions. The  Law  of  1892  abolished  two  of  these  exceptions,  but,  in  a 
certain  measure,  it  has  allowed  the  first  (that  relating  to  the  family 
workshop)  to  survive.  By  this  exception  is  understood  the  work- 
room in  which  are  employed  only  members  of  the  family,  under  the 
authority  of  the  father,  mother,  or  guardian.  The  legislator  shrank 
before  the  difficulties  and  the  resistance  that  were  certain  to  arise 
if  any  attempt  were  made  to  regulate  these  shops ;  where,  never- 
theless, abuses  were  numerous. 

The  law  limits  the  scope  of  the  exception  by  adding  that,  if  in  a 

1  What  was  intended  by  the  expression  "the  same  premises"?  Did  it 
refer  to  the  same  room  only  ?  Is  a  partition  all  that  is  necessary  to  make 
the  premises  different  ?  According  to  the  legislative  interpretation,  and 
that  accepted  at  first  by  the  Minister  of  Commerce,  by  "same  premises" 
was  to  be  understood  all  the  localities  where  work  is  related  and  combined 
in  such  a  way  as  to  furnish  a  common  product.  This  is  the  case  in  nearly 
all  establishments  having  a  mixed  personnel.  But  the  Supreme  Court 
upheld  a  restrictive  interpretation,  permitting  many  manufacturers  to 
erect  a  cheap  partition  between  the  different  workshops,  which  was  con- 
sidered sufficient.     Cassation,  November  30,  1901 ;  Dalloz,  1902,  1,  17. 

2  Are  these  provisions  also  applicable  to  adults  working  on  the  same 
premises  ?  The  Supreme  Court  had  first  held  so  ;  but  by  later  decisions, 
it  held  that  the  assimilation  of  the  two  cases  was  only  from  the  point  of 
view  of  the  duration  of  the  work,  and  that  the  rules  relating  to  relays  of 
work  and  to  periods  of  rest  did  not  apply  to  adults.  Cassation,  November 
30,  1901 ;   Dalloz,  1902,  1,  17. 

179 


§  12]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

family  workshop,  the  labor  was  accomplished  with  the  aid  of 
steam  or  mechanical  power,  or  if  the  industry  in  question  was 
classified  among  those  that  were  dangerous  or  unhealthy,  the  in- 
spector might  prescribe  certain  measures  of  safety  and  hygiene. 

Occupied  entirely  with  the  labor  of  children  industrially  em- 
ployed, the  Law  of  1874  did  not  place  any  restrictions  upon  com- 
mercial or  agricultural  employment,  nor  did  the  Law  of  1892  have 
a  more  extended  application  in  this  regard.  After  full  discussion 
the  question  of  agricultural  labor  was  laid  aside.  The  Committee 
report  by  Waddington  went  no  further  than  to  say  that  this  class 
of  work  presents,  from  the  point  of  view  of  health,  much  more 
benefit  than  detriment.  It  is  obvious  that  it  has  not  nearly  the 
same  danger  as  industrial  labor.  And  yet  we  must  admit  that  it 
has  been  possible  for  frequent  abuses  to  exist.  Whether  by  the 
desire  of  parents  or  of  employers,  the  child  is  often  engaged  in  the 
field  during  excessive  periods  or  at  tasks  exceeding  his  forces.  But, 
if  it  is  difficult  to  establish  an  effective  regulation  over  shops  where 
all  the  hands  work  together,  how  may  supervision  be  effected  with 
the  dispersion  and  extreme  variety  of  agricultural  labor?  Above 
all,  it  was  necessary  to  anticipate  the  opposition  that  would  have 
been  aroused.  Obligatory  education  until  the  age  of  thirteen  had 
already  met  with  strong  resistance  and  had  constituted  a  first 
corrective.  We  ought  almost  to  be  satisfied  if,  for  the  time  being, 
the  application  of  the  law  creating  this  obligation  could  be  enforced. 

Briefly,  then,  the  present  system  protects  women  and  children, 
though  still  inadequately;  the  regulation  of  the  labor  of  adults 
preserves  its  exceptional  character. 

§  13.  Other  Reforms  ;  Employment  of  Women ;  Sunday  Rest. — 
Many  reforms  remain  to  be  realized,  and  many  of  those  attempted 
are  yet  incomplete  or  only  partly  effective. 

In  the  first  place,  legal  protection  is  not  fully  accorded  to  com- 
mercial employees.  The  Law  of  July  13,  1906,  establishing  a 
weekly  day  of  rest,  is  one  of  the  first  measures  of  labor  regulation 
applicable  to  commercial  houses.  In  the  second  place,  certain 
foreign  laws  prohibit  work  by  women  for  a  certain  period  after 
child-birth.  The  French  Law  of  November  27,  1909,  does  no  more 
than  declare  that  the  suspension  of  the  work  of  the  mother  during 
1  lie  eighl  consecutive  weeks  preceding  and  following  accouchement 
cannot  be  a  cause  of  dismissal  by  the  employer  under  the  terms  of 
the  contract  of  her  service,  on  penalty  of  damages  recoverable  by 
her. 

Thirdly,  the  principle  of  a  weekly  day  of  rest  is  to-day  established 

180 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  14 

in  all  salaried  employments.  The  law  first  enjoined  it  in  favor  of 
married  women,  and  of  children  under  eighteen  years  of  age,  and 
was  content  to  provide  that  the  employer  might  not  employ  persons 
coming  under  the  law  more  than  six  days  a  week,  leaving  to  the 
parties  themselves  the  fixing  of  the  day  of  rest.  This  was  to  neglect 
the  main  purpose  of  the  reform.  In  fact,  the  prohibition  of  work 
on  Sunday  is  not  merely  a  hygienic  and  humanitarian  measure, 
but,  for  the  family,  disorganized  by  industrial  labor,  it  is  a  means 
of  rediscovery,  of  reunion  every  week.  To  offer  members  of  such 
a  family  different  days  of  rest,  is  to  deny  them  the  possibility  of 
reunion,  and  lead  them  to  seek  all  their  distraction  outside  the 
home.  The  Law  of  1906,  which  renewed  and  generalized  the  pro- 
hibition against  employment  of  the  same  employee  or  workmen,  in 
any  establishment,  industrial  or  commercial,  public  or  private,  lay 
or  ecclesiastic,  for  more  than  six  days  a  week,  establishes  the  prin- 
ciple that  the  period  of  rest  must  fall  simultaneously  and  on  Sunday. 
But  the  rule  contains  very  many  exceptions,  which  have  con- 
siderably reduced  the  scope  of  its  application.  The  result,  we 
believe,  might  have  been  different,  if,  in  place  of  limiting  the  dura- 
tion of  work  of  employees,  the  law  had  simply  prescribed  the  closing 
of  stores  on  Sunday. 

§  14.  Industrial  Employment  of  Women  in  the  Home.  —  Should 
we  encourage  the  industrial  employment  of  the  married  woman  in 
the  home  ?  The  question  is  a  troublesome  one.  On  first  thought, 
work  done  in  the  home  would  seem  the  best  form,  leaving  the  great- 
est initiative  and  independence,  and  assuring  a  dignity  to  life.  The 
wife  remains  in  the  house;  she  does  not  abandon  her  natural 
duties  and  yet  contributes  to  her  family's  resources.  As  a  matter 
of  fact,  work  performed  in  the  home  is  often  the  worst,  the  most 
unhealthy  of  all  forms.  The  worker  passes  her  life  in  a  small  room, 
badly  ventilated,  often  unheated,  where  the  dust  and  refuse  of  the 
work  renders  the  atmosphere  still  less  breathable.  There  is  even 
danger  to  the  purchaser  from  the  products  of  such  labor.  Certain 
contagious  diseases,  such  as  scarlet  fever,  diphtheria,  and  tuber- 
culosis, are  transmissible  to  those  who  wear  clothes  manufactured 
in  such  contaminating  surroundings.  And  finally,  it  is  the  poorest 
paid  form  of  work.  The  investigation  in  England  in  1895  showed 
infinitesimal  wages ;  for  a  dozen  buttonholes,  35  centimes ;  for  a 
shirt,  50  centimes,  for  25  bags,  75  centimes.  For  an  unbroken 
period  of  eight  hours,  from  eleven  o'clock  in  the  morning,  the 
women  earned  at  a  maximum  7.50  to  9  francs  a  week.  In  Ger- 
many, women  working  at  home  earn  8  francs  by  laboring  inces- 

181 


§  14]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

santly  fifteen  to  eighteen  hours  a  day.  For  home  spinning  the 
wages  for  the  whole  family  reach  10  francs  a  week.  In  Italy, 
weavers  of  straw  hats  make  4  to  5  cents  a  day  for  twelve  to  sixteen 
hours  of  labor.  An  investigation  in  Silesia  revealed  the  fact  that 
parents  made  their  children  get  up  early  and  work  until  school 
hours,  returning  them  to  their  task  after  school  until  nine  o'clock 
in  the  evening.  "The  average  of  forty-eight  trades  studied  showed 
an  annual  wage  of  exactly  389  francs,  79  centimes."  l  With  rare 
exceptions,  therefore,  the  home  industry  does  not  return  a  living 
wage. 

Have  remedies  for  these  abuses  been  suggested  ?  Those  engaged 
in  the  study  of  the  feminist  problem  have  voiced  but  an  uncertain 
and  divided  opinion. 

There  almost  seems  accord  in  recognizing  that,  in  spite  of  its 
great  mischief,  it  is  fruitless  to  dream  of  prohibiting  work  in  the 
home.  It  is  a  last  resource  in  a  desperate  situation  ;  it  provides  a 
crust  for  the  miserable ;  it  staves  off  death  rather  than  enables 
men  to  live.  The  Congress  of  Women's  Work  and  Institutions 
does  not  believe  that  State  protection  can  be  counted  upon.  It 
regards  it  as  impossible  and  impracticable.  How  can  people  be 
hindered  from  laboring  in  their  homes?  By  what  means  can  all 
these  homes  be  entered  and  a  useful  supervision  over  them  be 
exercised  ?  The  great  need  is  to  combat  the  causes  that  make  the 
work  done  in  the  home  inferior  in  earning  value,  a  sacrifice.  The 
competition  of  hand  against  machine  labor  must  be  abandoned ; 
a  system  of  work  in  the  home  must  no  longer  be  retained  as  part 
of  an  industrial  regime  that  is  outworn  and  vanished  ;  stockings  for 
example,  and  linen  goods,  must  not  be  made  by  hand  when  the 
machine  can  make  them  faster  and  better  and  cheaper.  Effort 
must  be  directed  to  introduce  the  machine  into  the  workingman's 
home  through  the  transmission  of  electric  motive  force ;  or  better 
yet,  we  should  strive  to  interest  these  workers  in  tasks  demanding 
taste,  intelligence,  special  aptitude,  work  which  often  gains  nothing 
by  being  done  in  common  with  other  laborers.  The  sweating  sys- 
tem must  be  fought  by  the  association  of  forces  against  it,  by  con- 
sumers' leagues,  the  elimination  of  middlemen,  agreements  among 
workshops  and  orphan  asylums  not  to  accept  work  at  prices  below 
market  value. 

Many  other  persons  incline  to  the  belief  that  these  remedies  are 

illusory  or  at  least  insufficient.     The  State  is  not  in  reality  as 

powerless  as  supposed.     The  International  Congress  for  the  Legal 

1  Cotelle,  "Le  sweating  system",  p.  6. 

182 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  15 

Protection  of  Workingmen  holds  as  effective  such  measures  as : 
1.  Prohibition  against  child  labor  in  the  home;  2.  suppression  of 
antiquated  industrial  methods  (hand-weaving  and  spinning),  by 
prohibiting  the  employment  of  new  apprentices ;  3.  efforts  to 
supervise  home  industry.1  Many  industrial  inspectors  believe 
such  a  supervision  possible,  especially  when  the  work  involves  the 
use  of  machinery  or  motive  power. 

We  should  insist  upon  the  introduction  of  all  these  means  of 
improvement.  They  involve  in  reality  nothing  that  is  incon- 
sistent, and  may  be  employed  simultaneously.  If  they  do  not 
succeed  in  putting  an  end  to  the  evil,  they  may  at  least  mitigate  it. 

V.    Formalities  of  Marriage 

§  15.  Exaggerated  Formalism  of  the  Code.  —  The  changes  that 
have  taken  place  in  the  condition  and  status  of  the  family  have 
given  to  the  law  governing  the  forms  of  marriage  an  antiquated  and 
singularly  baneful  character.  This  legislation  was  intended  for  a 
society  that  was  stable,  immobile,  respectful  of  family  influences. 
The  Civil  Code  imposed  numerous  conditions  as  to  capacity, 
parental  consent,  and  publicity.  It  requires  the  affianced  parties 
to  furnish  the  register  of  civil  status  with  the  papers  necessary  to 
prove  the  existence  of  all  these  conditions.  The  age  and  sex  of  the 
parties  are  established  by  their  birth  certificates.  The  consent  of 
the  parents,  if  they  are  not  present  at  the  ceremony,  is  given  in  a 
notarial  declaration  or  received  by  the  register  of  civil  status.  If 
they  are  dead,  the  fact  is  proved  by  a  certificate  of  the  register  of 
civil  status ;  where  several  publications  are  necessary,  the  register 
of  civil  status  must  be  furnished  with  a  certificate  in  proof  of  the 
publication,  and  that  no  objection  has  been  entered,  or  that  any 
existing  oppostion  has  been  removed.  When  we  remember  all  the 
long  and  costly  steps  necessitated  by  these  formalities,  the  many 
papers  that  the  parties  are  obliged  to  furnish ;  when  we  add  to  this 
embarrassment  the  ignorance  of  the  parties  or  the  inconsiderate- 
ness  of  the  administrative  agents  to  whom  they  have  to  apply; 
when,  finally,  we  reflect  that  the  documents  and  formalities  re- 

1  The  idea  of  setting  a  minimum  wage  for  work  in  the  home,  which  a  few 
years  ago  was  considered  impossible  of  realization,  appears  more  and  more 
as  a  necessary  reform,  which  should  at  least  be  tried.  The  various  inves- 
tigations, discussions,  and  studies  made  of  this  subject  have  broken  down 
resistance  and  dissipated  certain  prejudices.  The  draft  of  a  law,  pro- 
posed by  the  Government  November  7,  1911,  charges  the  "conseil  de 
prud'hommes"  with  the  fixing  of  a  minimum  wage  for  the  different  classes 
of  industries  carried  on  at  the  domicile. 

183 


§  15]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

quired  by  the  civil  marriage  cannot  suffice  also  for  the  religious 
marriage,  —  we  realize  the  truth  of  the  oft-repeated  saying  that, 
for  the  poor,  marriage  is  an  extravagance,  in  time  and  money. 
These  conditions  explain  the  increase  in  the  number  of  irregular 
households  in  the  large  cities  ;  many  persons,  chiefly  in  the  working 
districts,  hesitate  before  the  multiple  formalities.  The  parties 
live  together,  both  intending  to  regularize  later  a  situation  accepted 
for  the  moment.  But  years  elapse,  and  the  situation  remains 
unchanged.  A  quarrel  arises,  the  man  finds  new  attractions,  or 
feels  that  the  burden  of  caring  for  his  children  is  too  heavy.  The 
parties  recall  that  they  are  not  bound  to  each  other  by  any  legal 
obligation.     They  separate,  without  solicitude  for  the  children. 

These  sad  consequences  of  requiring  excessive  formality  have 
often  been  adverted  to.  Several  organizations  have  been  formed 
aiming  to  remedy  it  in  a  certain  measure.1  These  societies  offer 
to  undertake  all  the  necessary  steps  on  behalf  of  the  interested 
parties.  They  place  themselves  at  their  disposal,  or  voluntarily 
offer  their  services,  visiting  the  homes  of  persons  living  notoriously 
in  irregular  relationship,  pointing  out  the  dangers  of  their  situation 
to  themselves  and  their  children,  proposing  to  procure  for  them  all 
the  papers  and  pay  all  the  expenses  necessary  to  legalize  their 
union.  Under  these  conditions  the  parties  have  only  to  present 
themselves  on  the  appointed  day  before  the  register  of  civil  status. 
But  such  work  must  be  limited  in  results.  Legal  reforms  have 
often  and  long  been  demanded. 

A  law  of  December  10,  1850,  accomplished  the  first  improve- 
ment.    It  provided  that : 

1.  The  papers  necessary  for  the  marriage  of  the  impecunious, 
for  the  legitimation  of  natural  children,  and  for  the  return  of 
children  left  in  asylums,  shall  be  demanded  and  prepared  by  the 
register  of  civil  status  of  the  municipality  in  which  the  parties  shall 
have  declared  that  they  desire  to  be  married.  Such  necessary 
papers  shall  be  exempt  from  stamp  tax  and  recording  fee ;  judg- 
ments or  judicial  actions  shall  be  prosecuted  by  the  public  prose- 
cutor upon  his  own  motion  and  without  cost. 

2.  Persons  are  impecunious  and  entitled  to  the  benefit  of  this 
law  who  can  furnish  a  certificate  of  poverty,  delivered  to  them  by 
the  commissary  of  police,  or  by  the  mayor  in  municipalities  where 
no  commissary  of  police  exists,  showing  by  the  tax  record  that  the 

1  Saint-Francois-Regis  (1826) ;  Saint- Vincent  de  Paul ;  "  L'OEuvre 
eVangelique  des  papiers  de  mariage ;  La  Societe  du  mariage  civil  de 
Paris  et  du  departement  de  la  Seine." 

184 


Chap.    IV]  CHANGES   IN    FAMILY   LAW  [§  16 

interested  parties  pay  taxes  of  less  than  10  francs,  and  signed  by 
the  justice  of  the  peace. 

§  16.  Legislative  Reforms.  —  Experience  proved  these  measures 
insufficient,  since  the  evil  desired  to  be  remedied  increased  rather 
than  diminished.  The  necessity  for  greater  simplification  was 
generally  admitted.  The  proposals  made  with  this  object  led  up 
to  the  law  of  June  20,  1896,  and  of  June  21,  1907,  modifying  several 
articles  of  the  Civil  Code  with  a  view  to  facilitating  marriage. 
This  was  effected  by  the  suppression  of  certain  conditions  hitherto 
required  and  by  the  simplification  or  the  waiving  of  certain 
formalities. 

The  Civil  Code  gave  great  attention  to  the  rights  of  the  family 
in  the  matter  of  controlling  the  marriage  of  the  child.  It  provided 
that,  until  the  age  of  twenty-five  in  the  case  of  men  and  twenty- 
one  of  women,  the  possibility  of  marriage  remained  subject  to  the 
parents'  consent.  Without  their  consent  the  marriage  might  not 
be  celebrated,  or  if  celebrated,  its  annulment  could  be  demanded 
by  the  parents  whose  rights  had  been  ignored,  or  by  a  child  who 
had  not  obtained  their  consent.  After  the  age  of  twenty-five  or 
twenty-one,  as  the  case  may  be,  the  consent  of  the  parents  was  no 
longer  indispensable,  but  their  advice  had  to  be  asked.  Article 
151  of  the  Code,  reproducing  in  part  the  terms  of  the  Edict  of  1556, 
required  that  the  consent  be  asked  by  a  formal  petition.  The 
petition,  which  was  presented  to  the  parents  by  a  notary,  contained 
notice  of  the  child's  intentions.  It  had  to  be  presented  three 
times,  month  by  month,  by  daughters  between  twenty-one  and 
twenty-five  years  of  age,  and  by  sons  between  twenty-five  and 
thirty.  The  marriage  could  not  be  celebrated  until  after  the  expira- 
tion of  one  month  from  the  date  of  the  last  notice. 

These  rules  were  first  of  all  simplified  by  the  Law  of  1896,  which 
in  every  case  reduced  the  formal  petition  to  the  parents  to  a  single 
notice.  Since  the  usefulness  of  this  formality  was  already  doubt- 
ful, the  necessity  of  renewing  it  several  times  was  more  so.  The 
Law  of  June  21,  1907,  advanced  another  step.  When  the  child 
reached  the  age  of  twenty-one,  the  law  no  longer  required  the 
parents'  consent  in  any  case.  At  the  same  time  it  abolished  the 
formal  petition  to  the  parents,  replacing  it,  however,  by  a  new 
procedure.  Unless  over  thirty  years  of  age  the  parties  must  cause 
notice  of  their  intention  to  marry  to  be  sent  by  a  notary  to  their 
mothers  and  fathers,  and  after  such  notification  wait  a  period  of 
thirty  days  before  celebrating  their  marriage. 

To  simplify  the  proof  of  the  death  or  absence  of  parents,  a  De- 

185 


§   16]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

cree  of  the  Council  of  State  of  4  Thermidor  of  the  year  XIII  (1806), 
had  authorized  the  register  of  civil  status  to  allow  the  marriage 
of  persons  of  age  upon  a  simple  declaration  under  oath,  confirmed 
by  the  statement  of  witnesses,  that  the  place  of  death  or  of  last 
domicile  was  unknown.  The  Law  of  1896  changed  the  option  of 
the  register  of  civil  status  to  celebrate  marriage  to  an  obligation  on 
his  part  to  do  so.  At  the  same  time  a  parent,  sent  to  exile  in  a 
colony  or  held  in  prison  on  discharge  from  a  term  served  at  hard 
labor,  was  regarded  as  under  disability  to  manifest  his  will ;  the 
child  need  obtain  no  consent  from  him.  In  case  of  disagreement 
between  parents  who  are  divorced  or  separated  from  bed  and 
board,  it  is  sufficient  if  consent  is  obtained  from  the  party  securing 
the  separation  or  the  divorce  and  who  has  the  care  of  the  child. 

§  17.  Criticism  of  the  Reforms.  —  These  reforms  have  not  been 
without  effect.  They  have,  at  least  for  the  time  being,  brought 
about  an  increase  in  the  number  of  marriages.  Nevertheless,  the 
formalities  exacted  still  remain  too  burdensome,  slow,  and  com- 
plicated for  many  persons.  A  few  observations  will  make  this 
evident. 

1.  Marriage  is  gratuitous  for  the  impecunious  alone,  and  they 
must  claim  and  prove  themselves  to  be  such.  To  obtain  a  poor- 
certificate,  numerous  steps  are  necessary.  The  certificate  is  given 
by  the  mayor  or  the  commissary  of  police  only  upon  production  of  a 
certified  copy  of  the  tax  records  given  by  the  receiver  of  taxes. 
If  there  are  several  tax-receivers  in  the  town  where  the  party  lives, 
each  must  be  visited  successively.  This  is  not  all.  The  signature 
and  approval  of  the  justice  of  the  peace  are  required.  It  was  pro- 
posed, but  unsuccessfully,  to  do  away  with  this  requirement.  The 
circular  of  instructions  of  the  Minister  of  Justice  merely  declares 
that,  to  avoid  these  many  steps  and  consequent  loss  of  time  to  the 
parties,  the  mayor  shall  send  the  certificate  by  post  to  the  justice 
of  the  peace,  who,  after  having  signed  in  the  proper  case,  shall 
return  the  papers  by  the  same  means.  This  double  operation  will 
not  always  be  very  rapid ;  it  will  not  necessarily  avoid  inconven- 
ience to  the  interested  parties.  The  same  circular  of  instructions 
recommends  to  the  justices  of  the  peace  that  they  perform 
with  the  greatest  care  the  duty  of  supervision  confided  to  them. 
It  may  appear  necessary  to  them,  in  order  to  inform  themselves,  to 
summon  the  parties  and  hear  testimony. 

2.  The  law  declares  that,  in  the  case  of  the  marriage  of  impecuni- 
ous persons,  the  necessary  papers  shall  be  sought  and  procured  by 
the  register  of  civil  status  of  the  municipality  in  which  the  parties 

186 


CHAP.    IV]  CHANGES   IN    FAMILY   LAW  [§  17 

have  declared  their  desire  to  be  married.  The  parties  are  in  reality 
dependent  upon  the  diligence  and  good  will  of  this  officer.  If  he  is 
unobliging,  ill-informed,  or  unfamiliar  with  the  legal  requirements, 
the  parties  will  wait  a  long  time  and  will  make  frequent  journeys 
to  his  office.  If  a  difficulty  arises  with  regard  to  some  necessary 
paper,  it  is  not  to  be  hoped  that  he  will  undertake  steps  to  overcome 
the  obstacle  and  avoid  the  embarrassment. 

3.  A  great  complication  arose  from  the  difficulty  of  procuring  a 
death  certificate  or  proof  of  absence  of  the  parents.  The  Laws  of 
1896  and  1907  oblige  the  register  of  civil  status  as  the  general 
rule  to  be  content  in  such  case  with  the  sworn  statement  of  the 
parties.  The  circular  of  instructions  from  the  Minister  made  an 
exception,  however,  in  the  case  where  it  appeared  to  the  register 
of  civil  status  that  the  parties  were  not  honest.  Furthermore,  the 
text  of  the  law  is  that  the  marriage  of  persons  of  age  shall  be  per- 
mitted under  these  conditions.  From  this  it  has  been  concluded 
that  the  law  is  not  applicable  where  one  of  the  affianced  parties 
has  not  attained  twenty-one  years.  Such  a  party  is  not  excused 
from  furnishing  the  death  certificate. 

4.  The  papers  required  are  still  very  numerous  and  sometimes 
very  costly  or  difficult  to  get  together.  Before  the  marriage  can 
take  place,  a  birth  certificate  must  be  shown,  issued  not  more  than 
three  months  prior  if  in  France,  and  six  months  if  in  a  colony  or 
consulate.1  Persons  who  have  an  old  copy  of  their  birth  record 
may  not  use  it,  and  if  for  any  reason  their  marriage  is  delayed,  the 
papers  which  they  have  collected  may  be  invalid ;  a  new  birth 
certificate  may  be  necessary. 

Where  a  birth  certificate  cannot  be  procured,  a  declaration  of  the 
fact  of  the  birth  must  be  drawn  up  by  the  justice  of  the  peace  upon 
the  evidence  of  seven  witnesses.  This  declaration  of  birth  must 
then  be  presented  to  the  court  and  confirmed  by  it.  Where  the 
parents  are  divorced  or  separated  from  bed  and  board,  if  the  child 
produces  merely  the  consent  of  the  party  who  was  awarded  the 
divorce  and  the  child,  it  must  be  shown  that  the  advice  of  the 
other  parent  was  sought,  and  a  certified  copy  must  be  furnished  of 
the  judgment  of  separation  and  proof  of  the  recording  of  the  judg- 
ment upon  the  register  of  civil  status.  When  the  necessary  birth 
or  death  certificate  has  been  issued  in  the  municipality  where  the 
marriage  is  to  take  place,  the  registers  of  civil  status  sometimes 
require  the  production  of  certified  copies  of  these  entries,  although 
they  have  them  at  their  elbow  and  need  do  no  more  than  state,  in 
1  Law  of  August  17,  1897. 
187 


§  17]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

the  body  of  the  marriage  certificate,  that  they  have  verified  by 
examination  of  the  records  the  births  and  deaths  required  to  be 
proved.  In  fact,  the  registers  of  civil  status,  or  rather  the  clerks 
of  the  mayor's  office,  through  ignorance,  excess  of  precaution,  or 
fear  of  involving  their  responsibility,  multiply  the  requirements 
and  go  beyond  every  limit  of  law  or  reason.  We  may  cite  as  an 
example  the  case  of  a  certain  young  girl,  the  history  of  whose  case 
was  gathered  by  a  charitable  institution.  Resident  in  a  munici- 
pality where  she  desired  to  marry,  she  was  asked  to  prove  the 
death  of  her  parents.  The  name  of  the  father,  who  had  died  in 
the  hospital  of  Montpellier,  was  incorrectly  given  in  the  record. 
The  mayor  required  its  correction,  and  that  could  be  obtained  only 
by  a  judicial  proceeding.  The  judgment  was  secured,  and  a  cer- 
tificate of  the  corrected  record  was  addressed  to  the  mayor.  The 
name  of  the  father  was  correctly  given,  but  he  was  described  as 
single.  The  mayor  consulted  with  the  justice  of  the  peace,  and 
upon  his  advice  demanded  a  second  judgment  in  correction  of  the 
record.  The  intervention  of  two  public  prosecutors,  one  of  the 
place  of  birth,  and  the  other  of  the  domicile,  was  necessary  to 
terminate  the  affair,  and  induce  the  mayor  to  celebrate  the  mar- 
riage. Left  to  themselves,  without  such  obliging  assistance,  the 
parties  might  never  have  been  able  to  surmount  all  these  difficul- 
ties.1 

§  18.  Foreign  Legislation.  —  The  reforms  so  far  effected  in 
France  seem  incomplete.  Neighboring  legislations  furnish  us, 
however,  with  examples  of  simpler  and  more  reasonable  regulations. 
We  would  mention  especially  those  contained  in  the  German  and 
the  Swiss  Civil  Codes. 

In  Germany  and  Switzerland,  the  family  is  required  to  play  a 
part  only  in  case  of  the  marriage  of  minors.  Majority  is  fixed 
in  Germany  at  twenty-one  and  in  Switzerland  at  twenty.     If  the 

1  There  remain  the  delays  and  difficulties  to  which  the  right  of  opposing 
the  marriage  may  give  rise.  By  the  terms  of  Article  173  of  the  Civil  Code, 
the  father,  and  in  default  of  the  father,  the  mother,  and  the  grandparents, 
may  oppose  the  marriage  of  their  children  and  descendants,  although  these 
may  be  more  than  twenty-one  years  old.  The  opposition  may  be  validly 
made  up  to  the  moment  of  celebrating  the  marriage;  the  parents  or 
grandparents  are  not  obliged  to  give  a  motive  for  their  opposition,  and  the 
decree  denying  the  opposition  can  impose  no  damages  upon  the  parent 
wlio  has  sei  ii p  tin'  opposition  without  justification.  It  would  be  possible, 
in  fact,  to  cite  cases  where  oppositions,  though  judged  ill-founded,  have 
In  i  ii  renewed;  the  register  of  civil  status,  rightly  or  wrongly,  to  evade 
r<  sponsibility,  has  thought  it  his  duty  to  delay.  In  this  way  marriages 
been  delayed  for  months.  We  have  had  our  attention  drawn  to 
one  case  in  which,  by  multiplying  such  Legal  actions,  the  celebration  of  a 
marriage  was  successfully  prevented  for  eighteen  months. 

188 


CHAP.    IV]  CHANGES   IN    FAMILY   LAW  [§  18 

father  and  mother  are  dead  or  do  not  enjoy  parental  authority,  the 
consent  of  the  guardian  alone  is  asked,  and  the  right  of  appeal  is 
given  if  this  consent  is  withheld.1  In  France,  minority  is  in  a  sense 
prolonged  until  thirty  years,  because  of  the  necessity  of  proving 
the  consent  of  the  father  and  mother,  or  of  showing  that  they  have 
at  least  been  notified  of  the  intention  to  marry.  When  the  formal 
petition  was  replaced  by  mere  notice,  it  was  preserved  under  a 
different  name.  Its  entire  suppresssion,  which  the  Chamber  of 
Deputies  had  accepted,  but  to  which  the  Senate  would  not  agree, 
was,  nevertheless,  the  only  way  of  cutting  short  the  difficulties 
incident  to  proving  the  consent,  absence,  or  death  of  parents. 
Doubtless,  in  a  matter  of  this  sort,  the  legislator  must  guard  against 
a  two-fold  danger.  The  abuse  of  family  influences  may  be  fatal 
to  marriage.  We  cannot  be  forgetful  of  the  evil  caused  by  this 
abuse  among  the  nobility  and  upper  classes  at  the  close  of  the  Old 
Regime.  Excessive  individualism  on  the  other  hand  is  another 
danger.  The  child  who  marries  without  regard  to  the  preferences 
of  his  parents  by  such  very  act  tends  to  become  a  stranger  to  them. 
The  new  grouping  breaks  the  tie  which  bound  the  child  to  the  old. 
This  consideration  may  be  offset  by  recognizing,  as  a  compensation 
for  the  liberty  of  marriage,  the  rights  of  the  parents  to  disinherit 
the  child  who  marries  against  their  will. 

The  Swiss  Civil  Code  has  devised  a  very  simple  manner  of  pub- 
lishing and  celebrating  marriage.2  The  parties  need  only  make  a 
written  declaration  of  their  promise  to  marry  before  the  register  of 
civil  status  of  the  man's  domicile.  They  submit  their  birth  certifi- 
cates to  this  officer,  and  if  minors,  the  written  consent  of  their 
father,  mother,  or  guardian.  The  register  of  civil  status  then 
provides  or  directs  provision  for  publication,  in  accordance  with  the 
regulations  of  the  cantonal  law.  Direct  communication  between 
the  clerks  of  the  offices  of  civil  status  renders  the  intervention  or 
effort  of  the  parties  needless.  The  officer  receiving  the  promise  of 
marriage  issues  a  certificate  of  publication  after  determining  that 
there  has  been  no  opposition.  This  certificate  authorizes  the 
couple  to  be  married  within  the  next  six  months  by  any  Swiss 
register  of  civil  status.  The  German  Civil  Code,  somewhat  less 
liberal,  only  confers  jurisdiction  to  marry  3  upon  the  officer  of  the 
locality  where  one  of  the  parties  has  his  residence  or  domicile,  but 
permits  4  the  granting  of  a  written  authorization  by  virtue  of  which 
the  marriage  maybe  celebrated  before  other  registers  of  civil  status. 

1  German  Civil  Code,  Art.  1304.  3  Art.  1320. 

2  Arts.  105-119.  "Art.  1321. 

189 


§  19]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

VI.    Social  Value  of  Marriage 

§19.  Disapproval  of  the  Institution  of  Marriage. — The  an- 
archistic school,  and  a  whole  wing  of  the  socialistic  school,  consider 
marriage  reform  a  deception ;  for  they  go  so  far  as  to  hold  the  insti- 
tution itself  as  evil  in  its  results  and  condemn  it  absolutely. 

It  is  not  easy  to  systematize  these  objections  or  criticisms,  which 
are  ordinarily  very  violent  and  are  presented  under  the  most  varied 
forms :  in  the  novel,  the  theatre,  or  studies  in  social  economy. 
Marriage  is  denounced  as  immoral  and  anti-social.  In  essence  it 
should  be  an  association  founded  upon  love,  confidence,  and  mutual 
respect ;  in  reality  it  becomes,  especially  in  the  well-to-do  classes, 
a  sort  of  sale,  "  do  ut  des."  The  husband  seeks  the  marriage 
portion,  the  bride  or  her  parents  set  value  upon  worldly  position. 
The  outward  respect  manifested  on  marriage  is  mere  conventional 
sham.  "  Every  marriage  entered  into  between  man  and  women 
in  view  of  a  material  position  or  other  selfish  advantage,"  says 
Max  Nordau,  "  is  prostitution.  It  is  of  no  importance  whether 
such  an  alliance  has  been  celebrated  by  the  register  of  civil  status 
of  the  State,  or  by  a  priest,  or  any  first  comer."  *  The  laboring 
class  partly  escapes  the  influence  of  these  selfish  motives.  For 
them  marriage  is  more  disinterested,  though  no  more  moral.  The 
husband  believes  that  his  wife  belongs  to  him,  that  he  has  a  right 
over  her.  He  has  not  a  fine  enough  nature  to  realize  that  his  right 
is  of  another  sort  than  that  which  he  exercises  over  chattels. 
"  And  where  will  this  man,  ignorant,  abused  by  destiny,  embittered 
by  a  hand-to-mouth  struggle  for  existence,  himself  a  victim  in  the 
world  of  wage  earners  of  the  oppression  and  iniquities  of  others,  — 
where  will  he  learn  to  respect  human  personality?  The  law  de- 
livers over  to  his  life-keeping  a  being,  frailer  than  he,  owing  obedi- 
ence, entirely  dependent  upon  him  when  their  children  arrive. 
We  need  feel  no  surprise  if,  this  situation  lending  itself  to  abuse, 
lie  does  abuse  it  and  revenges  his  own  sufferings  in  tortuous  ways, 
choosing  as  his  victim  his  wife,  over  whom  law  and  custom  placed 
him  as  master  without  ever  interfering  to  recall  him  to  his  duties."  2 
Selfishness,  cupidity,  grossness,  tyranny  of  the  poor,  each  class  has 
it    vices. 

Marriage,  it  is  claimed,  is  not  only  immoral,  it  is  injurious. 
Postponed  by  reason  of  the  difficulty  of  making  a  position,  it  causes 

1  Max  Nordau,  "Les  mcnsongos  eonventionnels"  (French  trans,  by 
Dietrich),  p.  273. 

Benoit  Malon,  "Le  soci'alisme  integral",  Vol.  I,  p.  344. 

190 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  20 

the  incontinence  of  a  certain  proportion  of  youth,  and  brings  in 
its  train  seduction  and  prostitution.  Marriage  is  difficult,  almost 
impossible,  for  the  girls  of  the  middle  class,  well  brought  up,  but 
without  fortune.  It  denies  a  family  to  those  who  are  perhaps  most 
fitted  to  assume  family  duties,  the  noblest  and  the  most  devoted. 
The  idea  of  proprietorship,  of  subjection,  at  the  basis  of  this  con- 
ception of  marriage,  is  a  cause  of  grief  and  waywardness.  It 
causes  a  condition  of  sex-war,  a  state  of  violence  which,  writes 
Malon,1  "  because  of  the  degrading  unfitness  of  juries,  the  com- 
plicity of  a  conscienceless  press,  without  vision  or  principles,  is 
becoming  a  common,  glorified,  encouraged,  universalized  practice 
of  assassination  in  its  lowest  form,  because  of  jealousy."  Lastly, 
marriage  leads  to  the  most  shocking  inequality.  The  law,  which 
aims  to  make  it  the  basis  of  the  family,  condemns  the  children  born 
from  an  irregular  union  to  a  place  of  inferiority,  though  without 
responsibility  for  the  fault  of  their  parents ;  and  their  legal  in- 
feriority is  aggravated  yet  more  by  custom.  Thus  Bebel  con- 
cludes :  "  The  wealthy  classes  are  neither  able  to  give  a  satisfac- 
tory form  to  marriage  nor  provide  satisfactorily  for  those  who  do 
not  marry."  Worst  of  all,  among  the  poor  marriage  is  no  protec- 
tion to  woman.  The  obligations  of  the  husband  do  not  carry  suffi- 
cient penalty ;  performance  of  the  engagements  entered  into  is 
never  assured. 

§  20.  Refutation  of  these  Views.  —  There  is  great  exaggeration 
in  these  accusations,  though  no  doubt  also  a  certain  amount  of 
truth.  Marriage  is  often  degraded  by  immorality,  or  dishonored 
by  covetousness  and  regard  for  money.  It  nevertheless  still 
remains,  as  Letourneau  recognized,  the  surest  and  the  sole  pro- 
tection of  the  child.  Statistics  show  that  the  child  born  of  an 
irregular  union  is  infinitely  more  exposed  to  crime,  sickness,  and 
death.  The  figures  gathered  by  the  "  Institut  International  de 
Statistique " 2  showed  that  the  number  of  still-born  among 
illegitimate  children  in  France  is  almost  double  that  among  legiti- 
mate children.  If  we  suppose  the  number  of  legitimate  still-born 
to  be  a  hundred,  the  number  of  the  illegitimate  still-born  is  in 
France  a  hundred  and  eighty-nine.  The  irregular  union  sacrifices 
the  child.  If  the  parents  think  only  of  themselves  and  assume  no 
obligation  as  to  the  future,  the  child  will  always  be  sacrificed. 
And  the  woman  no  less  so.  All  that  tends  to  render  the  union 
of  the  sexes  temporary  and  unstable  militates  against  the  woman. 

1  Benoit  Malon,  op.  cit.,  Vol.  I,  p.  349. 

2  Cited  by  Pouzol  in  "La  recherche  de  la  paternite",  pp.  384-385. 

191 


§  20]  PART    I      READJUSTMENT   OF    LAW  [Chap.    IV 

She  is  abandoned  when  she  no  longer  pleases,  when  youth  is  over, 
when  she  has  been  worn  by  cares,  sufferings,  and  the  pains  of 
motherhood. 

The  least  reproach  that  can  be  aimed  against  irregular  unions, 
said  Pouzol,1  is  that  it  is  open  to  the  same  attack  as  marriage.  In 
the  first  place,  the  "  union  libre  "  is  in  no  sense  a  guarantee  of 
happiness.  It  has  its  victims  like  marriage.  While  marriage  is 
founded  sometimes  upon  base  motives,  the  search  after  pleasure, 
the  satisfaction  of  the  passions,  belong  to  no  loftier  standards. 
Every  day  the  newspapers  contain  accounts  of  dramas  of  jealousy 
and  fickleness  in  these  irregular  families.  It  is  difficult  to  say 
whether  they  are  more  or  less  numerous  than  in  marriage.  Are  not 
such  unions,  when  they  endure  any  length  of  time,  denounced  by 
the  advanced  radicals  as  a  form  of  marriage  ?  "I  would  observe," 
wrote  Sebastien  Faure,2  "  that,  in  my  belief,  the  same  disadvan- 
tages result  from  unlawful  unions  and  irregular  establishments. 
Such  unions  are  in  reality  true  marriages  lacking  civil  and  religious 
sanction." 

It  is  obviously  in  the  interest  of  society  that  the  relation  of  the 
sexes  be  not  abandoned  to  the  caprice  of  individual  liberty,  that 
the  State  insist  upon,  and  set  penalties  to,  the  obligations  at  the 
inception  of  the  union,  and  that  it  concern  itself  with  the  welfare  of 
women  and  children.  We  favor  indeed  a  penalty  yet  more  severe  ; 
we  would  ask  if  it  would  not  be  desirable  to  make  abandonment 
of  the  family  a  crime. 

We  do  not  think,  however,  that  it  is  necessary  to  push  the  rigor 
of  our  principles  to  the  point  of  ignoring  and  disregarding  reality. 
The  truth  is  that  the  majority  of  such  unlawful  unions  are  formed 
in  the  cities.  In  certain  quarters  of  Paris  they  form  more  than  half 
the  households.  When  they  are  permitted  and  endure  over  a 
period,  they  should  be  given  consequences.  It  is  proper  that  cer- 
tain results  should  attach  to  their  status  favoring  the  child  and 
even  the  women  ;  it  is  proper  to  permit  that  the  continuance  of  the 
relationship  should  involve  responsibility,  independent  of  any 
question  of  seduction  or  promise  of  marriage.  In  these  days,  when 
the  provisions  of  the  workmen's  insurance  laws  commence  to 
apply,  it  is  highly  important  to  bring  the  irregular  households 
within  the  terms  of  the  insurance.  Certain  mutual  insurance 
companies  have  already  made  significant  concessions  by  according 
the  same  aid  to  the  man's  companion  as  to  the  wife.     The  Law 

1  ( Jited  by  Pouzol  in  "  La  recherche  de  la  paternite",  p.  421. 

2  "La  douleur  universelle",  p.  316,  note  1. 

192 


CHAP.     IV]  CHANGES    IN    FAMILY    LAW  [§  21 

of  April  9,  1898,  upon  industrial  accidents,  grants  twenty  per  cent 
of  the  wage  in  the  case  of  the  death  of  the  workman  to  the  widow  in 
case  only  she  is  not  divorced  or  legally  separated,  and  on  the  condi- 
tion that  the  marriage  was  contracted  prior  to  the  accident.  As 
to  the  proportion  granted  the  children,  the  law  makes  no  distinc- 
tion between  legitimate  and  illegitimate  descendants.  A  more 
liberal  and  humane  rule  would  seem  desirable.  The  rule  ought  to 
be  that,  on  condition  that  the  situation  be  declared  when  the  insur- 
ance commences,  the  workman  may  be  allowed  to  stipulate  that 
the  benefit  shall  be  payable  to  the  woman  with  whom  he  is  living 
in  an  unlawful  relationship.1 

VII.    Married  Women's  Status 

§  21.  Parental  and  Marital  Authority.  —  We  may,  in  a  general 
manner,  describe  thus  the  position  in  which  our  law  places  the 
woman  as  such  :  She  participates  in  no  way  whatsoever  in  political 
life,  but  within  the  domain  of  private  law  the  two  sexes  are  placed 
upon  a  footing  of  complete  equality.  The  civil  law  no  longer 
recognizes  any  privileges  due  to  masculinity.  Woman  enjoys  as  a 
general  rule  the  same  advantages  as  man.  Her  legal  capacity  is 
the  same.  We  can  think  of  scarcely  an  exception  apart  from  the 
matter  of  guardianship ;  from  Article  442  of  the  Civil  Code  it 
follows  that  women  other  than  mothers  and  female  grandparents 
cannot  be  guardians  or  members  of  the  "  family  council."  2 

But  the  equality  accorded  to  women  ceases  with  her  marriage. 
Made  subject  to  her  husband's  authority,  she  is  affected  by  an 

1  It  seems  possible  to  observe  two  movements  working  oppositely.  On 
the  one  hand,  the  tendency  is  to  regulate  the  irregular  union  ;  on  the 
other,  by  facilitating  and  widening  the  causes  of  divorce,  the  social  value 
of  marriage  is  decreased.  There  results  at  once  a  gain  and  a  loss,  and 
between  them  a  sort  of  balance  may  be  established. 

2  This  exclusion  is  explained  by  the  influence  of  an  old  notion,  aeeo 

to  which  guardianship  is  a  public  charge.  It  is  by  reason  of  this  idea  thai 
persons  who  have  been  deprived  of  their  political  rights,  women  and  for- 
eigners, are  not  permitted  to  exercise  this  function.  The  conception  seems 
to  us  quite  antiquated.  Since  1875,  the  Court  of  Cassation  lias  allow*  d 
the  foreigner  to  become  guardian  in  France  of  his  French  children.  Cf. 
Cassation,  February  Hi.  1ST.");    Sirey,  1875,  1.  193. 

In  so  far  as  applicable  to  women,  this  incapacity  is  both  unjust  and 
regrettable;  it  can  never  be  explained  why  an  aunt  or  older  sister,  who.  in 
the  particular  case,  may  be  perhaps  the  only  protectors  of  the  child,  the 
only  persons  capable  of  loving  it,  can  neither  act  as  guardian  nor  as 
members  of  the  family  council,  and  that  we  are  driven  to  an  appeal  for 
assistance  from  strangers  or  persons  who  are  indifferent.  The  Law  of 
July  2,  1907,  abolishes  this  exclusion  as  to  the  truardianship  of  illegitimate 
children;  there  is  no  reason  for  maintaining  it  when  the  guardianship  of 
legitimate  children  is  in  question. 

193 


§  21]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

incapacity  embracing  all  her  jural  acts.  She  can  perform  none  with- 
out the  authorization  of  her  husband  or  a  court.  We  must  examine 
her  situation  from  two  points  of  view.  It  is,  in  fact,  possible  to 
distinguish  matters  relating  to  the  husband's  authority,  the  rights 
and  obligations  of  both,  from  those  relating  to  their  property. 

It  is  difficult  to  say  in  what  measure  the  Civil  Code  accepted  and 
established  the  principle  of  marital  authority.  It  belongs  rather 
to  the  past.  It  is  certain,  however,  that  there  was  no  desire  to 
reject  it.  Article  1388  mentions  it  expressly  and  prohibits  any 
derogation  by  the  terms  of  the  marriage  contract.  Article  213 
declares  that  the  husband  owes  protection  to  the  wife,  the  wife 
obedience  to  the  husband. 

Legal  historians,  notably  Paul  Viollet,1  have  shown  in  a  striking 
manner  the  correspondence  between  the  history  of  marital  and  of 
parental  authority.  In  the  beginning  they  both  constituted  rights 
without  limitations.  The  father  and  husband  was  absolute  mas- 
ter over  the  person  of  his  child  and  his  wife.  His  authority, 
regulated  solely  by  custom,  was  free  from  all  legal  control.  It 
conferred  the  right  of  life,  death,  sale,  correction,  and  incorporation. 

§  22.  History  of  the  Limitations  Imposed.  —  Progress  has 
operated  in  two  ways : 

1.  The  exercise  of  the  right  was  conditioned  upon  the  existence 
of  a  legitimate  ground.  This  doctrine  is  what  is  called  to-day  the 
theory  of  the  "  misuse  "  ("  abus  ")  of  rights.  We  have  endeav- 
ored to  show  elsewhere,2  that  this  doctrine  had  very  early  origins, 
that  it  was  encountered  in  every  legislation,  and  that  in  the  Roman 
law  it  explains  the  development  of  a  large  number  of  institutions. 
The  "  actio  Pauliana  "  was  a  restraint  placed  upon  the  exercise  of 
certain  rights.  The  protection  of  the  slave  against  the  master, 
and  of  the  child  against  the  father,  tended  to  repress  the  abusive 
exercise  of  rights.  Recourse  was  had  to  the  same  method  when  it 
was  a  question  involving  the  wife.  It  was  not  permissible,  ac- 
cording to  an  old  law  of  the  Lombards,  that  a  husband  should  kill 
his  wife  when  he  pleased,  but  only  for  a  reasonable  cause.3  Viollet 
believes  that  even  in  the  1000  s  a.d.  the  husband  used  to  exercise 
his  right  to  kill  his  wife,  when  he  had  a  good  reason.4  Beaumanoir 
contains  the  same  idea  with  regard  to  bodily  correction :  "A 
husband  may  beat  his  wife  when  she  refuses  to  obey  his  commands 

1  "Precis  de  l'histoire  du  droit  francais",  p.  416,  etc. 

2  "Revue  trimestrielle  de  droit  civil",  Vol.  I,  p.  119;  "Le  droit  et 
l'esprit  democratique",  p.  88. 

3  Edict  of  Itolharis,  chap.  200. 

4  "Precis  de  l'histoire  du  droit  francais",  p.  419. 

194 


CHAP.    IV]  CHANGES    IN    FAMILY   LAW  [§  22 

or  when  she  denounces  him  or  lies  to  him,  provided  that  he  does 
so  moderately  and  that  death  does  not  ensue."  *  Gradually  the 
act  came  to  be  condemned  aside  from  its  motives,  and  to  be  con- 
sidered no  longer  within  the  sphere  of  the  husband's  rights.  Thus 
to-day  marital  authority  no  longer  includes  the  right  of  bodily 
correction.  But  this  right,  which  is  refused  to  husbands,  may  be 
exercised,  according  to  certain  authors,  by  the  father  upon  the  son. 
The  day  is  not  perhaps  far  distant  when  the  two  cases  will  be 
assimilated.  The  suppression  of  the  abuses  will  have  led  to  the 
limitation  or  abolition  of  the  right. 

2.  Another  means  may  be  employed  without  suppressing  the 
husband's  right  of  correction.  He  may  no  longer  be  allowed  to 
exercise  it  directly.  Its  application  may  be  entrusted  to  a  public 
authority,  which  would  act  vigorously  upon  motion  of  the  husband. 
Thus,  in  our  early  law  the  husband  had  the  power  to  shut  his  adul- 
terous wife  in  a  convent.  Some  jurists  required  the  consent  of  the 
nearest  relatives  of  the  wife.  The  husband  could  also  apply  to 
the  courts  and  show  cause  for  obtaining  an  order  of  imprisonment. 
Among  the  noble  class,  a  detention  that  was  sometimes  for  life 
resulted  from  "  lettres  de  cachet."  A  trace  of  this  manner  of  exer- 
cising the  right  of  correction  is  found  in  the  provisions  of  the  Penal 
Code,  relative  to  the  punishment  of  adultery.  In  the  first  place, 
the  punishment  is  severer  for  the  wife  than  for  the  husband.  The 
adultery  of  the  wife  is  always  a  crime  whenever  committed.  She  is 
punished  by  imprisonment,  whereas  a  mere  fine  is  provided  against 
the  husband  who  has  been  guilty  of  adultery  in  his  home.  Lastly, 
whereas  the  husband  who  kills  his  wife  caught  in  adultery  enjoys  a 
defense  in  extenuation,  no  text  of  the  lav/  excuses  the  murder  of  the 
husband  by  the  wife  under  like  circumstances.  The  adultery  of  the 
wife  may  be  prosecuted  only  by  the  husband  ;  he  has  the  power  to 
stay  the  effect  of  a  condemnation  by  consenting  to  take  back  his 
wife.  It  seems  likely  that,  in  this  invocation  of  the  public  authority 
and  in  this  right  of  condonation,  there  are  traces  of  the  power  of 
correction.2 

At  the  end  of  the  Old  Regime,  the  marital  power  consisted  of  little 
more  than  a  preponderance  of  authority  in  the  husband,  considered 
legally  as  head  of  the  family.  It  was  regulated  by  custom  rather 
than  law.  Pothier  defined  it  as  the  right  of  a  husband  to  require 
from  his  wife  all  the  duties  of  obedience  which  are  due  to  a  superior.3 

1  "Coutume  de  Beauvoisis",  57,  6. 

2  Paul  Viollet,  "Precis  de  l'histoire  du  droit  francais",  p.  424 

3  Puissance  du  mari",  no.  1. 

195 


§  23]  PART    I      READJUSTMENT   OF    LAW  [Chap.    IV 

§  23.  Early  and  Revolutionary  Law.  — ■  Viollet  has  shown  that 
the  early  law,  at  a  certain  period  in  its  history,  augured  a  brighter 
legal  future  for  the  wife.1  In  the  Middle  Ages  we  see  the  woman 
associated  in  the  affairs  and  interests  of  her  husband,  taking  a  real 
part  in  the  feudal  regime,  sharing  in  the  sovereignty  that  attached 
to  the  ownership  of  the  fief,  as  when,  for  example,  even  in  the  vassal 
class,  she  took  part  in  certain  elections.  In  the  provinces  of  written 
law  she  met  with  no  civil  disability.  We  may  accept  these  as  so 
many  favorable  prognostications  that  have  failed. 

Another  fact  may  be  surprising.  The  French  Revolution,  the 
object  of  which  was  to  liberate  mankind,  showed  itself  distrustful, 
even  hostile,  to  feminine  claims.  A  few  isolated  voices  were  raised 
in  their  favor ;  but  in  general,  they  were  treated  rather  as  enemies. 
They  were  regarded  as  a  retrograde  element,  attached  to  the  prej- 
udices of  the  Old  Regime  as  well  as  to  religious  traditions.  When 
Charlier  demanded  that  women  enjoy  the  right  of  association, 
Bazier  replied :  "  We  propose  for  the  time  to  throw  a  veil  over 
abstract  principles,  for  fear  of  the  use  to  which  they  might  be  put 
in  encouraging  a  counter-revolution.  It  is,  therefore,  solely  a 
question  of  determining  whether  meetings  of  women  are  dangerous. 
Experience  has  proven,  these  recent  days,  how  perilous  they  are  to 
public  tranquillity.  This  admitted,  let  me  hear  no  more  about 
-principles.  I  demand  that,  exceptionally,  and  as  a  matter  of  public 
safety,  associations  of  women  be  prohibited,  at  least  during  the 
revolution."  2 

§  24.  Napoleon's  Hostility.  —  They  met  yet  another  adversary 
in  Napoleon  I,  who  was  no  lover,  or,  more  properly,  no  respecter  of 
women.  He  proposed  to  prohibit  all  social  and  political  activity 
by  them.  Their  function  was  to  be  limited  to  bringing  children 
into  the  world  and  to  caring  for  the  home.  During  the  period  of 
the  preparation  of  the  Code,  he  insisted  upon  the  insertion  of  the 
principle  of  obedience  to  the  husband,  and  required  that  she  be 
reminded  formally  of  this  duty  at  the  moment  of  the  marriage 
celebration.  "  The  word  '  obedience  '  is  especially  suited  to 
Paris,  where  women  believe  they  have  the  right  to  do  what  they 
please.  May  it  not  be  well  to  add  that  the  wife  shall  not  receive 
persons  displeasing  to  her  husband  ?  "  3  The  draft  of  the  Code 
limited  the  duty  of  the  wife  to  follow  her  husband ;    but  these 


1  "Precis  de  l'histoire  du  droit  francais",  p.  248. 

2  Cited  by  Mme.  Maria  Cheliga,  "Le  mouvement  feministe  en  France", 
in  "Revue  politique  et  parlementaire"  (Aug.  1897),  p.  274. 

3  Thibaudeau,  "Menioires  sur  le  Consulat",  p.  426. 

196 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  25 

limitations  were  suppressed  upon  the  opinion  of  the  First  Consul, 
who  insisted  that  the  principle  of  obedience  be  accepted 
absolutely. 

§  25.  Wife's  Civil  Incapacity.  —  It  is  difficult  to  characterize  the 
state  of  dependence  created  by  marriage.  We  may  observe  at  least 
that  the  woman,  on  marriage,  abdicates  or  compromises  her 
capacity,  her  nationality,  her  name,  her  liberty,  and  her  life. 
Over  her  children  she  has  not  the  same  rights  as  her  husband. 

There  is  no  doubt  but  that  the  civil  incapacity  of  the  married 
woman  was  considered  in  our  early  law  as  a  consequence  of  the 
husband's  power.  "  The  necessity  of  the  husband's  authoriza- 
tion," said  Pothier,1  "  is  founded  solely  upon  the  power  which  the 
husband  has  over  the  person  of  his  wife,  which  allows  the  wife  to 
do  nothing  save  with  his  consent."  From  this  flowed  logically  a 
certain  number  of  consequences,  for  the  most  part  recognized  by 
our  early  law.  Nevertheless,  we  find  in  the  Civil  Code  a  whole 
series  of  applications  not  in  accordance  with  this  principle.  For 
example : 

1.  Invalidity  of  her  acts,  for  want  of  authorization,  may  be 
pleaded  not  only  by  the  husband,  but  also  by  the  wife.  The 
husband  alone  should  be  permitted  to  benefit  by  it,  if  the  incapac- 
ity was  merely  a  penalty  attaching  to  his  authority. 

2.  When  the  husband  is  insane,  a  minor,  or  absent,  the  wife's 
incapacity  has  no  reason  to  exist.  Nevertheless,  the  Code  tells  us 
that  in  such  case  the  authority  of  the  husband  shall  be  replaced 
by  that  of  the  court. 

3.  If  her  disability  is  a  penalty  attaching  to  the  husband's 
authority,  it  should  be  possible  for  authorization  to  be  general, 
and  a  ratification  after  the  act  should  be  held  sufficient.  But  it  is 
not  so.  Authorization  must  be  specific  and  given  at  the  moment 
of  the  performance  of  the  act.  Ratification  by  the  husband  does 
not  deprive  the  wife  of  her  right  to  demand  the  annulment  of  his  act. 

How  are  we  to  explain  these  rules  unless  the  purpose  of  incapacity 
is  to  protect  the  wife,  just  as  guardianship  is  to  protect  the  minor  ? 

On  the  other  hand,  if  the  authorization  is  established  in  the 
interests  of  his  wife,  if  the  law  fears  for  her  inexperience,  her  fickle- 
ness, it  becomes  difficult  indeed  to  explain  a  mass  of  provisions, 
implying  the  contrary  idea,  that  the  law  recognizes  in  women  a 
complete  aptitude  for  all  acts  of  civil  life.  Since  the  legislator 
regards  woman  as  incapable,  why  does  he  not  assure  her  protection 
before  as  well  as  after  marriage  ?  How  are  we  to  explain  that  she 
1  "Puissance  du  mari",  no.  3. 
197 


§  25]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

may  be  guardian  of  her  children  or  of  her  insane  husband,  or  that 
she  may,  by  an  authorization,  become  a  trader?  And  above  all, 
how  are  we  to  understand  the  legislator's  abandonment  of  her  to 
herself  at  the  moment  when,  if  true  that  she  is  actually  incapable, 
she  has  particular  need  of  protection  ;  as  for  example,  when  she 
contracts  with  her  husband,  or  makes  him  a  gift,  or  goes  surety  for 
him  ?  In  such  case  the  husband  may  be  called  to  give  legal  capac- 
ity to  his  wife  in  his  own  interests  and  against  her  own.  Were  the 
incapacity  created  in  benefit  of  the  wife,  the  law  would  not  contain 
such  provisions.  The  law,  indeed,  protects  all  who  lack  capacity, 
notably  minors,  as  against  those  charged  with  the  management  of 
their  property,  whenever  the  interests  of  the  guardian  and  ward 
conflict. 

We  may  then  suppose  that  the  incapacity  of  the  married  woman 
is  not  explainable  exclusively  upon  either  of  these  two  bases,  pro- 
tection of  the  wife  or  dependence.  Both  inspired  the  legislator, 
without  its  being  possible  to  determine  which  of  the  two  influences 
predominated.  The  consequence  has  been  such  contradictions 
as  we  have  just  pointed  out.  All  that  may  be  said  is  that  the 
preparatory  drafting  of  the  Code  proves  that  the  legislator  gave 
weight  to  all  these  motives,  and  that  the  incapacity  of  the  wife  was 
regulated  in  her  own  interest,  in  that  of  the  husband,  and  in  the 
common  interest  of  the  family.  "  The  system,"  as  Beudant  recog- 
nizes, "  is  hard  to  defend,  since  it  is  neither  precise  in  principle  nor 
well  regulated  in  application." 

An  important  derogation  was  made  by  the  Law  of  February  6, 
1893,  which  completely  abolished  the  incapacity  of  the  woman 
separated  from  bed  and  board.  No  reason  is  apparent  for  not 
conferring  a  like  capacity  upon  all  women  separated  with  respect 
to  their  estates  by  judicial  process  or  b}^  agreement.  Other  dero- 
gations upon  the  principle  of  incapacity  have  been  introduced  by 
special  laws  and  these  exceptions  are  making  way  for  its  final 
abandonment. 

In  Italy,  incapacity,  though  still  broad,  is  the  exception.  It 
does  not  exist  outside  the  cases  covered  by  Article  134  of  the  Code. 
In  England  women  have  been  freed  from  all  civil  incapacity  by  the 
Acts  of  1870  and  1882.  The  incapacity  of  the  married  woman  does 
not  exist  under  the  German  Code  ;  the  wife  may  freely  bind  herself, 
or  contract,  subject  to  two  exceptions:  1.  Her  acts  can  not  prej- 
udice those  of  her  husband's  rights  that  grow  out  of  their  matri- 
monial system  ;  2.  the  husband  may,  with  the  consent  of  the 
Guardianship  Court,  cancel  his  wife's  contracts  by  which  she  binds 

198 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  27 

herself  to  the  performance  of  acts  which  appear  contrary  to  their 
common  interest.1  We  meet  almost  the  same  system  in  the  Swiss 
Civil  Code ;  the  general  rule  is  again  that  of  capacity  of  the 
married  woman.  "It  is  not  apparent,"  said  the  author  of  the 
Code,2  "  why  a  woman  should  be  placed  under  guardianship  by 
the  fact  of  her  marriage,  when  she  previously  enjoyed  the  exercise 
of  her  civil  rights.  Her  marriage  has  not  taken  from  her  either  her 
intelligence  or  more  particularly  her  experience  of  affairs."  Arti- 
cle 167  admits  but  a  single  restriction,  in  the  case  of  the  exercise  of 
a  profession  or  trade.  If  the  husband  refuses  his  consent  the  wife 
may  be  authorized  by  the  court  to  enter  a  profession  or  trade,  if  she 
is  able  to  show  that  such  action  is  dictated  by  the  interests  of  their 
union  or  of  the  family. 

§  26.  Her  Nationality.  —  The  legal  principle  is  still  maintained 
in  France  that  a  woman  acquires  the  nationality  of  her  husband  by 
marriage.3  This  has  sometimes  been  explained  by  a  presumption 
of  intention.  The  reason  is  a  poor  one.  Nothing  leads  us  to 
suppose  this  intention ;  and  at  least  the  wife  should  be  able,  by  a 
formal  declaration,  to  avoid  a  change  of  nationality.  It  is  in 
reality  a  survival  of  the  law  of  the  Old  Regime,  by  which  the  indi- 
viduality of  the  wife  was  absorbed  into  the  husband's.  By  a  sort 
of  inconsistency  a  change  of  nationality  on  the  husband's  part  is 
without  effect  upon  the  wife.  A  French  woman  loses  her  national- 
ity by  marriage  with  a  foreigner,  but  does  not  regain  it  if  her 
husband  subsequently  becomes  French.  Since  1889  she  is  merely 
allowed  to  obtain  French  nationality  without  waiting  the  pre- 
liminary period,  either  through  the  same  decree  conferring  it  upon 
the  husband,  or  by  a  declaration  made  in  accordance  with  Article 
9  of  the  Civil  Code  before  a  justice  of  the  peace  of  the  canton  and 
recorded  with  the  Minister  of  Justice.4  The  same  should  be  true 
of  the  acquisition  of  nationality  on  marriage ;  the  law  should 
facilitate  the  wife's  acquisition  of  her  husband's  nationality,  but 
not  impose  it. 

§  27.  Her  Name.  —  It  has  been  uninterruptedly  customary  to 
call  the  married  woman  by  her  husband's  name.  To  what  extent 
has  the  usage  force  of  law  ?  The  question  has  long  been  contro- 
verted.    Some  authors,  notably  Beudant,5  find  a  genuine  acquisi- 

1  German  Civil  Code,  Art.  1358. 

2  Eugen  Hiiber,  "Expose  des  motifs  de  l'avant-projet :  droit  des  per- 
sonnes",  Vol.  I,  p.  95. 

3  Civil  Code,  Arts.  12,  19. 

4  Civil  Code,  Art.  12,  modified  by  Law  of  June  26,  1889. 

5  "Droit  civil:   etat  des  personnes",  Vol.  I,  p.  420. 

199 


§  27]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

tion  based  upon  customary  law.  Most  authors  contest  the  author- 
ity of  custom.  The  Law  of  February  6,  1893,  which  forbade  the 
divorced  wife  to  retain  her  husband's  name,  would  seem  to  justify 
the  argument  based  upon  custom.  Divorce  could  not  deprive  the 
wife  of  a  right  to  the  name  if  she  had  not  acquired  it.  Furthermore, 
the  practice  is  not  explained  merely  by  reasons  of  convenience  or 
manners,  but  implies  a  dependence,  an  inferiority,  a  survival  of  the 
time  when  the  woman  dropped  out  of  her  own  family  upon  enter- 
ing her  husband's.  The  proof  is  that  the  progress  of  feminism  is 
contrary  to  this  ancient  habit.  A  woman  exercising  a  trade  does 
not  willingly  give  up  on  her  marriage  a  name  which  has  acquired 
a  value ;  she  does  not  merely  add  hers  to  her  husband's ;  she 
first  adopts  her  own  and  adds  her  husband's.1 

§  28.  Her  Loss  of  Liberty.  —  Marriage  deprives  the  wife  of  a 
portion  of  her  independence.  She  must  live  with  her  husband, 
following  him  wherever  he  pleases  to  reside.  Obedience  is  the 
price  of  the  protection  owed  her.  The  courts  have  not  yet  uni- 
versally abandoned  the  rule  that  the  wife  may  be  forcibly  brought 
back  to  her  husband's  home,  though  the  practice  of  such  means 
has  become  more  and  more  repugnant.  The  courts  recognize  also 
the  husband's  right  to  control  his  wife's  social  relationships  and 
correspondence,  though  they  interfere  only  to  repress  an  abuse. 
For  example,  the  courts  have  refused  to  recognize  the  husband's 
right  to  deprive  his  wife  arbitrarily  of  all  association  with  her  near 
relatives.  It  is  disputed  whether  the  husband  can  force  the  postal 
authorities  to  deliver  to  him  directly  letters  addressed  to  his  wife. 
Article  807  of  the  General  Postal  Instructions  authorizes  delivery 
to  the  husband,  but  exacts  an  order  of  the  court.  The  question 
does  not  arise  in  practice  so  long  as  the  parties  live  together. 

The  more  important  problem  is  to  determine  what  legal  use  the 
husband  may  make  of  letters  addressed  to  his  wife  which  fall  into 
his  possession.  In  this  respect  the  husband  and  the  wife  are  not 
upon  an  equal  footing.  The  wife  is  allowed  to  use  letters,  written 
by  her  husband  or  addressed  to  him,  only  when  they  have  fallen 
into  her  hands  without  the  employment  of  any  reprehensible  means 
to  procure  them.  She  may  for  example  use  letters  found  open  in  a 
piece  of  furniture  or  in  the  pockets  of  his  clothes  or  also  letters 
opened  with  his  consent.  It  has  been  held,  that  she  may  not, 
on  the  contrary,  use  letters  intercepted  in  the  hands  of  a  servant 
having  instructions  to  post  them. 

The  husband's  situation  is  quite  different.     Until  very  recently 
1  Perreau,  "Le  droit  au  nom  en  matiere  civile",  p.  233. 
200 


CHAP.    IV]  CHANGES   IN    FAMILY   LAW  [§  29 

he  was  permitted  to  have  all  letters  written  or  received  by  his  wife, 
jio  matter  what  means  he  employed  to  procure  them,  upon  the 
single  condition  that  that  means  did  not  constitute  a  crime.  A 
decision  of  the  Court  of  Cassation  l  has  placed  an  important 
restriction  upon  this  right.  It  admits  in  the  courts  the  right  to  bar 
confidential  letters  which  have  come  into  the  husband's  possession 
by  unfair  or  unloyal  means.  In  the  particular  instance  a  woman, 
a  friend  of  the  wife,  had  confidentially  received  letters  compromis- 
ing the  wife,  and  the  friend  had  delivered  them  to  the  husband. 
Here,  as  in  the  question  of  the  right  of  controlling  her  social  rela- 
tionships, the  courts  condemned  the  abuse  of  the  right  without 
disputing  its  existence.  In  giving  the  principles  of  its  decision,  the 
court  said :  "  Though  the  conception  of  the  inviolability  of  cor- 
respondence must  give  way  exceptionally  before  the  husband's 
right,  arising  out  of  his  domestic  authority,  to  search  for  proof  of 
injury  done  his  honor  or  of  any  serious  failure  in  the  marriage  vows 
imputable  to  the  wife,  nevertheless  this  right  may  not  be  without 
limits." 

The  principle  thus  affirmed  would  seem  nothing  less  than  obvi- 
ous. Admitting  that  the  husband  has  a  right  of  control  over  his 
wife,  are  we  to  conclude  that  this  right  can  nullify  the  rule  of  the 
confidential  nature  of  correspondence?  If  a  matter  is  confided 
to  the  wife  by  reason  of  her  profession,  may  she  not  maintain  it 
secret  from  her  husband?  Is  it  admissible  that  by  virtue  of  his 
authority  as  husband  he  can  force  his  wife  to  reveal  it  to  him  or 
try  to  discover  it  by  stealth,  by  opening  her  desk  and  ransacking 
her  papers  ?     Is  there  not  identity  in  the  two  situations  ?  2 

§  29.  Inequality  of  Parental  Authority.  — The  status  of  depend- 
ence and  inferiority  of  the  wife  again  appears  in  the  unequal 
attribution  of  rights  to  the  father  and  mother  over  their  children. 
The  Civil  Code,  by  Article  372,  declares  that  the  child  remains 
under  the  authority  of  his  parents  until  he  is  of  age  or  is  eman- 
cipated. But  Article  373  adds  that  during  marriage  the  father 
alone  exercises  this  authority.  The  second  rule  radically  alters 
and  would  seem  even  wholly  to  contradict  the  first.  We  should, 
however,  give  the  law  credit  for  having  recognized  the  mother's 
right,  if  only  as  an  abstract  principle.  It  was  enough  to  justify 
the  courts  in  deciding  that  the  exercise  of  the  parental  authority 
by  the  father  may  not  go  so  far  as  to  exclude  the  mother  com- 
pletely.    The  father  may  not,  for  instance,  separate  the  mother 

1  February  5,  1900,  reported  in  Sirey,  1901,  I,  17 ;  note  by  Naquet. 

2  Id.,  p.  18,  col.  1  and  note. 

201 


§  29]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

from  her  child.  In  the  abuse  of  his  authority  the  courts  recognize 
a  wrong  sufficiently  grave  to  lead  to  a  separation  from  bed  and 
board  or  divorce. 

Furthermore,  even  during  marriage,  the  parental  power  is  not 
always  exercised  exclusively  by  the  father.  In  certain  important 
acts  the  Civil  Code  formally  recognizes  the  mother's  participation. 
Thus,  in  the  consent  to  marry,  the  mother's  and  father's  authority 
is  associated ;  she  must  at  least  be  consulted.  For  the  necessary 
consent  to  an  adoption,  the  Code  goes  even  farther,  at  least  in  the 
opinion  of  the  great  majority  of  text-writers.  It  is  not  enough  that 
the  mother  be  consulted ;  she  must  herself  consent  to  the  adoption, 
and  the  desire  of  the  father  cannot  prevail  over  her  wish.  We  have 
here  a  real  derogation  from  the  principle  contained  in  Article  373. 
Like  the  father,  the  mother  has,  even  during  the  former's  life, 
the  right  to  accept  gifts  to  her  child,  and  her  acceptance  will  be 
valid  in  spite  of  the  father's  opposition. 

Such,  in  a  general  manner,  is  the  division  made  by  the  Code, 
between  the  two  parents,  of  the  rights  falling  within  parental 
authority.  We  do  not  hesitate  to  say  that  the  share  attributed  to 
the  mother  is  unjustly  small.  While  admitting  that  the  father, 
considered  as  the  head  of  the  family,  may  alone  in  principle  have 
capacity  to  represent  the  child  or  enforce  its  rights,  at  least  the 
right  of  appeal  to  the  courts  ought  to  be  reserved  to  the  mother. 
In  all  decisions  affecting  the  child's  future,  marriage,  emancipa- 
tion, choice  of  a  profession,  withdrawal  of  parental  authority, 
commitment  to  a  corrective  institution,  it  is  important  that  the 
mother's  reasons  should,  when  the  case  arises,  be  given  considera- 
tion. 

German  and  Siviss  Legislation.  —  But  legislations  more  recent 
than  France  have  not  yet  adopted  this  rule.  Though  the  German 
Civil  Code,  by  Article  1634,  recognizes  in  the  mother  the  right  and 
duty  of  caring  for  the  person  of  her  child,  in  case  of  dispute  it  is  the 
father's  will  that  prevails,  without  possibility  of  appeal.1  The 
right  of  appeal  exists  only  when  the  conduct  of  the  father  constitutes 
a  danger  to  the  child  from  the  point  of  view  of  his  health  or  his 
morals. 

Nevertheless,  the  German  Civil  Code,  in  this  matter,  seems  much 
more  favorable  to  the  wife  than  the  French.  We  have  already 
said  that  under  it  the  married  woman  is  subjected  to  no  disability ; 
and  it  is  proper  to  add  that  all  the  obligations  arising  out  of 
marriage  are  reciprocal  and  that  none  is  special  to  the  husband,  or 

1  Art.  1634,  fin. 
202 


CHAP.    IV]  CHANGES   IN    FAMILY   LAW  [§  29 

indicative  of  her  subjection  or  dependence.  We  might  be 
tempted  to  argue  from  this  that  the  German  Code  recognizes  the 
complete  equality  of  husband  and  wife  in  marriage.  Let  us  not, 
however,  be  deceived.  Inequality  appears  under  another  heading. 
Article  1354  confers  upon  the  husband  the  right  to  decide  all  affairs 
relating  to  their  joint  life.  As  an  important  instance,  he  deter- 
mines the  domicile  and  residence  of  the  family.  However,  two 
correctives  are  admitted : 

1.  Whenever  the  husband's  decision  constitutes  an  abuse  of 
his  right,  the  wife  need  not  submit ;  the  court  decides.  It  is  an 
abuse  of  his  right  for  the  husband  to  act  without  justifiable  motives, 
when  his  decision  is  opposed  to  common  usage  and  practice.  It 
might  be  thus  considered  an  abuse  for  the  husband  to  desire  to 
change  the  residence  in  order  to  make  it  impossible  for  the  wife  to 
exercise  her  profession. 

2.  One  right  is  recognized  as  peculiar  to  the  wife ;  the  power 
over  the  keys  ("  Schlusselgewalt  ").  The  wife,  says  Article  1356, 
has  the  duty  and  right  to  direct  the  household.  Thus  the  law 
imposes  upon  the  wife  the  obligation  of  directing  the  housekeeping 
and  confers  upon  her  the  necessary  powers  to  this  end.  She  is, 
says  Article  1356,  bound  to  do  the  housework,  when  this  work  is 
customary  for  her  in  view  of  the  station  in  life  of  the  couple.  But 
this  obligation  is  at  the  same  time  a  right,  and  the  wife  has  the 
power  to  make  the  expenditures  necessary  for  the  family  life,  and 
she  represents  and  binds  her  husband  in  all  these  charges.  This 
representation  corresponds  to  what  we  call  the  general  and  implied 
agency  by  which  the  wife  is  considered,  for  all  the  purchases  neces- 
sary for  their  common  life,  as  acting  in  the  name  of  the  husband. 
The  German  Civil  Code  expressly  creates  this  agency,  while  with 
us  it  has  been  a  product  of  text-writers  and  practice.  The  hus- 
band, it  is  true,  may  restrict  this  right  of  representation  or  even 
withdraw  it  from  his  wife  ;  but  she  may  appeal  to  the  court,  if  the 
limitation  or  denial  constitutes  a  misuse  of  his  right. 

We  find  an  institution  almost  similar  in  the  new  Swiss  Civil 
Code.  As  in  Germany,  the  legislator  has  manifested  his  sym- 
pathy toward  women,  as  was  said  by  Saleilles.  His  legislation 
attests  his  desire  to  recognize  her  own  peculiar  rights  and  to  guar- 
antee them  fully. 


203 


§  30]  PART   I      READJUSTMENT    OF   LAW  [Chap.    IV 

VIII.    Married  Women's  Property 

§  30.  Diversity  of  Matrimonial  Systems.1  —  The  law  governing 
the  management  of  a  married  woman's  property  varies  according 
to  the  matrimonial  system  adopted  by  the  parties.  Under  the 
systems  known  as  community,  marriage-portion,  and  exclusion  of 
community,  the  wife's  property  is  managed  by  her  husband.2 
Under  the  system  of  separation  of  estates,  whether  by  agreement  or 
by  judicial  decree,  the  wife  maintains  her  independence  in  the 
management  of  her  property. 

By  far  the  most  common  system  in  France  is  community.  In 
1898,  out  of  82,400  marriage  contracts,  68,412  provided  for  the 
community  regime.  Moreover,  the  great,  majority  of  persons 
marry  without  written  contract  of  settlement;  there  is  scarcely 
one  contract  to  every  three  marriages.  Now,  all  who  marry  with- 
out contract  come  under  the  system  of  statutory  community.  It  is, 
therefore,  the  wife's  situation  under  this  system  that  we  are  chiefly 
concerned  with.  The  question  is,  Whether  it  deserves  the  prefer- 
ence accorded  it  by  the  Code  ? 

In  appearance  it  would  seem  the  most  conformable  to  nature,  — 
to  the  end  itself  of  marriage.  In  reality  it  has  serious  defects. 
It  is  complicated ;  it  brings  together  three  categories  of  property 
and  requires  that  certain  distinctions  be  maintained  between  them ; 
it  necessitates  liquidation  on  dissolution  of  marriage ;  and  to  an 
extent  it  sacrifices  the  wife's  rights,  by  assuring,  almost  of  neces- 
sity, a  preponderant  right  in  the  husband. 

It  is  notable  that  in  Europe  the  community  system  has  found  its 
operation  more  and  more  restricted.  Separation  of  estates  is  the 
statutory  system  in  Russia,  Italy,  and  England.  The  German 
Civil  Code  has  made   "  administrative  union  " 3  the  statutory 

1  [By  "matrimonial  system  or  regime"  is  meant  a  particular  body  of 
legal  rules  governing  the  property  relations  of  husband  and  wife.  —  Transl.] 
I  uder  "community"  the  husband  has  the  management  of  three 
estates  :  his  own  personal,  his  wife's  estate,  and  the  estate  owned  in  com- 
mon by  (lie  two.  Under  the  marriage  portion  system  the  wife's  property 
is  divided  into  two  eategories :  that  which  she  brings  as  "dot",  which  the 
husband  manages  and  enjoys  beneficially;  and  her  separate  estate  or 
"paraphernalia  ,  of  which  she  retains  the  management  and  enjoyment,. 
Under  the  system  of  exclusion  of  community  the  estates  of  husband  and 
wife  remain  separate,  the  husband  however  managing  and  beneficially 
enjoying  both.  It  is  community  with  the  common  estate  excluded. 
Under  I  tie  regime  of  separation  of  estates  each  reserves  both  the  manage- 
ment and  enjoyment  of  his  and  her  own  estates.  —  Transl.] 

[The  Legal  or  statutory  matrimonial  regime  in  Germany  is  <_roverned 
sin<-,.  L900  by  Arts.  1363-1431  of  the  civil  ("ode.  It  is  generally  termed 
that     of   ''administrative    community"    (" Verwaltungsgemcinschaft") ; 

204 


Chap.    IV]  CHANGES   IN    FAMILY   LAW  [§31 

system  of  the  Empire,  whereas  previously  community  was  the 
common  law  rule  for  more  than  half  of  Germany.  A  like  reform 
has  just  been  effected  in  Switzerland ;  community  was  the  statu- 
tory system  of  a  dozen  Cantons;  but  the  new  Code  adopted  by 
preference  the  system  of  administrative  union,1  and  those  who 
criticise  this  change  set  up  as  preferable  to  it  only  the  system  of 
separation  of  estates. 

The  system  of  separation  of  estates  reserves  to  each  party  the 
title,  management,  and  enjoyment  of  his  or  her  own  property. 
Each  contributes  to  the  common  expenses  and  retains  exclusively 
the  profit  of  the  economies  realized.  It  is  this  system  that  com- 
monly rallies  the  support  of  the  feminist  party,  because  it  realizes  the 
maximum  independence  of  the  wife.  It  may,  however,  be  asked, 
whether  by  such  a  choice  the  true  interests  of  the  wife  are  not 
sacrificed  to  mere  appearances.  So  long  as  the  household  prospers, 
it  is  generally  the  husband  who  earns  the  money.  The  separation 
of  estates  attributes  no  part  of  the  earnings  to  the  wife ;  she  gains 
no  advantage  by  her  participation  in  the  common  life.  "  Why  is  it 
not  seen,"  said  Menger,  "  that,  in  the  small  household,  carrying  on 
a  modest  trade  or  industry,  the  wife  works  almost  as  hard  as  the 
husband  ?  And,  in  any  case,  is  it  not  by  her  housekeeping  that 
the  husband  is  enabled  to  give  all  his  time  to  his  business  and  to 
increase  his  profits  ?  Is  it  just  that  from  all  this  direct  or  indirect 
collaboration,  nothing  should  return  to  the  wife?  " 

§31.  Administrative  Union  in  Germany  and  Switzerland. — 
The  system  adopted  as  the  statutory  regime  by  the  German  and 
the  Swiss  Civil  Codes  is  known  under  the  name  of  "  administrative 
union",  or  "  community  of  management."  These  expressions, 
which  are  lacking  in  precise  signification,  lend  themselves  to  mis- 
understanding. They  would  seem  to  imply  the  participation  of 
both  parties  in  the  management  of  the  property  and  the  constitu- 
tion of  a  common  fund.  The  reality  is  quite  different.  The 
administrative  union  is  realized  in  the  husband,  who  manages  both 
his  own  and  his  wife's  estate.  It  suggests,  as  is  customarily  said, 
the  French  system  of  exclusion  of  community.     However,  each 

sometimes  "unity of  property"  ("Giitereinheit")  or  "union  of  property" 
("Giitervereinigung"  or  "Giiterverbindung"),  designated  in  the  Code  as 
the  husband's  right  of  management  and  beneficial  enjoyment  ("Vor- 
waltung  und  Nutznieszung  des  Mannes";  Art.  1363).  See  French 
official  translation  of  the  German  Civil  Code  (Imprimerie  Nationale, 
1908,  Vol.  Ill,  p.  115)  ;  Schuster,  "The  Principles  of  German  Civil  Law" 
(Oxford,  1907),  pp.  499-508.  —  Transl.] 

1  [Art.  178.  The  Code  calls  this  the  "  Vorschrif ten  der  Guterverbin- 
dung."  —  Transl.] 

205 


§  31]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

has  its  peculiar  features.     Rather  than  characterize  the  adminis- 
trative union,  it  will  be  better  to  endeavor  to  describe  it. 

Property  rights  remain  distinct ;  each  consort  continues  owner 
of  what  he  or  she  possesses  or  may  acquire.  There  is  no  estate  in 
common ;  in  general,  it  is  to  the  husband  that  fall  the  enjoyment 
and  management  of  his  wife's  property.  His  right  of  management 
does  not  permit  him  to  alienate  her  property  without  her  participa- 
tion or  to  subject  her  property  by  his  own  debts.  It  seems,  never- 
theless, that  the  interests  of  the  wife  are  entirely  sacrificed.  She 
does  not  profit  by  the  economies  which  she  realizes,  nor  has  she  the 
enjoyment  of  her  property.     But  to  this  there  are  two  correctives. 

1 .  The  German  Code,  like  the  Swiss  Code,  rejects  our  rule  of  the 
unalterability  of  the  marriage  agreement.  Now,  this  statutory 
system  has  no  serious  disadvantage  for  those  who,  living  on  their 
earnings  from  day  to  day,  employ  them  to  defray  the  expenses  of 
their  life  in  common.  It  becomes  unjust  when,  in  the  course  of 
their  marriage,  they  come  into  a  fortune,  and  especially  if  this 
wealth,  though  made  by  the  husband,  could  only  have  come 
through  the  help  and  cooperation  of  the  wife.  The  parties  may 
then  substitute  for  the  statutory  system  a  contractual  regime,  — 
for  example,  a  partnership  of  acquests,  upon  the  sole  condition 
that  they  satisfy  the  rules  as  to  form  and  publicity  required  by  law. 
There  is  no  restriction  to  their  liberty,  except  the  interests  of  third 
parties,  and  such  an  interest  merely  requires  a  thorough  publicity. 
Before  extending  credit  to  married  persons,  their  marriage  system 
is  inquired  into,  just  as  one  investigates  the  mortgage  record  of  a 
man  who  asks  credit. 

2.  Certain  classes  of  property  escape  the  husband's  management 
and  enjoyment.  These  constitute  what  is  known  as  the  reserve, 
and  may  arise  from  three  sources :  the  terms  of  the  marriage  con- 
tract, the  gift  of  a  third  party,  the  determination  of  the  law. 
(a)  The  rule  recognizing  the  terms  of  the  marriage  contract  as  a 
basis  is  merely  an  application  of  the  principle  of  the  liberty  of 
matrimonial  agreement.  A  similar  freedom  applies  to  these  terms, 
and  consequently  they  may  be  altered  during  the  marriage,  on 
condition  that  the  contracting  party  conform  to  the  rules  as  to 
publicity.  (b)  So,  during  marriage,  a  third  person  may  make  a 
donation  to  the  husband  or  wife,  stipulating  that  the  property 
given  or  bequeathed  form  part  of  the  reserve  estate,  (c)  And 
lastly,  by  Articles  1300  and  1307,  the  reserve  estate  is  composed  of 
the  objects  intended  exclusively  for  the  personal  use  of  the  wife, 
such  as  her  jewelry,  wearing  apparel,  the  tools  of  her  trade,  what 

200 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  32 

she  has  acquired  by  her  own  labor  or  by  her  independent  pursuit 
of  a  trade.  This  is  an  extremely  important  provision,  reserving 
to  the  wife  the  management  and  enjoyment  of  her  salary  and 
profits,  and  withdrawing  them  from  the  possession  and  control  of 
the  husband.  A  partial  separation  of  estates  results  ;  the  wife  has 
the  entire  control  of  her  reserve  and  she  may  treat  it  in  the  same 
manner  as  though  she  were  not  married. 

§  32.  Objections ;  Community  Limited  to  Acquests.  —  It  re- 
mains to  inquire  whether  such  a  statutory  regime  will  not  in  prac- 
tice raise  serious  complications,  and  often  result  in  an  injury  to  the 
wife's  interests.  In  reality  the  husband  and  wife  who  have  put 
aside  savings  will  almost  always  have  an  account  in  common. 
How  will  the  wife  prove  what  part  of  these  savings  originated  from 
her  own  profits?  There  is  another  complication.  The  profits  or 
savings  of  the  wife  may  have  served  to  defray  their  common  ex- 
penses ;  but  such  expenses  are  chargeable  to  the  husband.  Logically, 
he  owes  a  restitution.  But,  to  cut  short  difficulties  of  proof  of  this 
kind,  and  to  avoid  complicated  accounts,  Articles  1429  and  1430 
decide  that  the  wife  who  spends  her  property  for  the  maintenance 
of  the  household  or  leaves  the  management  to  the  husband,  is 
presumed  not  to  intend  to  claim  compensation.  Would  it  not  have 
been  simpler  and  juster  (as  Saleilles  has  remarked)  to  recognize  in 
law  the  community  which  exists  in  fact,  and  to  permit  the  partition 
of  what  has  been  placed  in  common  ? 

But  in  France,  the  question  wrhether  it  is  advisable  to  abandon 
the  community  system  is  not  influenced  by  the  example  of  neigh- 
boring legislations.  Such  influence  is  very  great  in  all  matters 
relating  to  industry,  commerce,  and  business  in  general.  Other 
matters  on  the  contrary  cling  more  closely  to  national  usage  and 
tradition.  It  is  so  in  the  laws  of  inheritance  and  marriage  ;  and, 
there  seems  no  doubt  but  that  in  France  the  general  preference  is 
for  community.  It  is  the  best  known  system,  and,  furthermore, 
not  only  the  most  practical,  but  also  the  most  generally  accepted. 
Experience  proves  that  it  is  not  impossible  to  reconcile  its  retention 
with  the  reforms  which  may  appear  desirable.  We  believe  that  a 
revision  of  the  Civil  Code  will  lead  to  a  recognition  of  the  need  of 
substituting  community  of  acquests  as  the  statutory  system  in 
place  of  the  present  community,  and  to  the  need  of  bettering  the 
condition  of  the  married  woman. 

Community  limited  to  acquests  is  much  more  just  and  conform- 
able to  the  presumed  intention  of  the  parties  than  statutory  com- 
munity.    It  creates  between  husband  and  wife  an  association  of 

207 


§  32]  PART   I      READJUSTMENT    OF   LAW  [Chap.    IV 

interests,  without  the  possibility  that  such  association  will  injure  one 
at  the  expense  of  the  other.1  Almost  all  marriage  agreements  of 
community  are  agreements  which  establish  community  of  acquests. 
It  is,  moreover,  observable  that  the  statutory  community  differs 
sensibly  from  the  early  community  of  movables  and  acquests.  In 
our  early  law  almost  all  the  important  forms  of  property,  includ- 
ing offices  and  rents,  were  considered  as  immovables.  It  is  no 
longer  so  to-day,  and  "  the  very  considerable  growth  in  fortunes 
composed  of  movables  has  merely  served  to  accentuate  more  and 
more  the  difference  between  the  community  of  our  early  law  and 
that  of  the  Civil  Code."  2 

It  is  objected  that  statutory  community  is  the  system  for  persons 
who  marry  without  express  contract,  and  that  without  such  con- 
tract it  is  impossible  to  prove  what  each  party  brings  in  personal 
property.  Nevertheless,  when  we  study  the  question  of  proof,  we 
see  that  we  have  greatly  exaggerated  the  difficulty.  It  has  not 
discouraged  foreign  legislators  who  have  made  community  of  ac- 
quests the  statutory  system.  In  countries  which  have  adopted  the 
system  of  administrative  union,  the  difficulty  of  proof  arises  quite 
as  much  as  in  the  countries  adopting  community  of  acquests. 
There  is,  moreover,  a  whole  class  of  movables,  whose  source  may  be 
established  as  easily  as  that  of  immovables.  Such  are  administra- 
tive offices,  the  good  name  of  a  business,  choses  in  action,  registered 
securities.  The  difficulty  exists,  properly  speaking,  only  in  the  case 
of  certain  forms  of  property,  such  as  securities  to  bearer,  money, 
and  chattels.  Most  legislations  require  no  inventory  or  notarial 
declaration.  They  simply  establish  in  favor  of  the  community 
estate  a  presumption,  which  may  be  rebutted  by  any  form  of  proof. 
Greater  strictness  may  be  shown  in  the  exceptional  case  where  the 
exercise  of  the  wife's  right  to  take  back  her  property  would  place 
her  in  conflict  with  creditors.  Admitting  even  the  necessity  of  an 
inventory,  why  not  permit  it  to  be  drawn  up  over  a  signature  and 
dated  ?  The  inventory  would  always  cost  much  less  than  a  mar- 
riage agreement.  Lastly,  we  may  remark  that  the  present  system, 
so  rigid  in  the  matter  of  proof,  does  not  avoid  falsification  or  exag- 
geration of  the  values  of  the  property  brought  by  each  party. 
The  notary  does  not  know  whether  the  objects  described  to  him 

1  As  its  name  indicates,  community  limited  to  acquosts  is  a  regime  by 
which  the  association  of  property  is  restricted  to  acquests  arising  during 
the  marriage  from  revenues  of  the  separate  estate  of  each  or  from  the 
industry  of  the  two. 

Ti88ier,  "De  la  communaute  d'acquets  envisagee  comme  regime  de 
droit  commun",  p.  6. 

208 


Chap.  IV]  changes  in  family  law  [§  34 

have  really  been  contributed,  or  whether  their  value  has  not  been 
overstated. 

§  33.  Husband's  Excessive  Powers  under  Community.  —  If  we 
look  at  the  most  ordinary  condition,  that  of  the  household  in  which 
a  livelihood  is  gained  from  day  to  day,  we  cannot  but  recognize 
that  the  French  Code  took  no  precaution  to  prevent  these  resources 
from  being  turned  away  from  their  normal  destination. 

The  powers  of  the  husband  over  the  property  constituting  the 
community  are  excessive.  He  may,  by  Article  1421,  sell,  alienate, 
or  mortgage  it  without  his  wife's  joining.  How  often  has  it  hap- 
pened, especially  among  the  working  class,  that  the  husband,  to 
raise  money,  has  sold  all  or  part  of  their  chattel  belongings,  objects 
of  prime  necessity,  the  condition  of  their  work  and  their  existence, 
those  even  which  the  law  in  its  humanity  exempts  from  seizure. 
He  need  give  no  reason,  he  need  not  account ;  the  property  forming 
the  community  is  bound  for  all  his  debts.  The  situation  is  differ- 
ent in  the  wealthy  class,  where  the  wife  has  been  able  to  take  pre- 
cautions, and  where  her  security,  which  is  in  the  form  of  a  lien 
upon  her  husband's  property  for  the  restoration  of  her  estate, 
results  in  associating  her  in  the  important  transactions  by  which 
the  husband  alienates  the  property  of  the  community  or  even  his 
own  separate  estate. 

The  wife  pays  the  common  expenses,  represents  her  husband, 
only  by  virtue  of  an  implied  power  always  considered  revocable. 
According  to  the  Code  the  husband  may  dispose  not  only  of  what  he 
makes,  but  may  also  appropriate  what  his  wife  has  gained  by  her 
labors,  or  he  may  demand  or  withhold  her  salary.  If  he  dissipates 
or  mismanages  the  property  entrusted  to  him,  the  wife  has  recourse 
to  a  proceeding  for  separation  of  their  estates,  —  an  effective 
remedy  for  those  who,  having  a  private  fortune,  obtain  its  restitu- 
tion ;  a  useless  protection  for  those  who  live  off  their  daily  earnings. 
Moreover,  the  procedure  is  too  long  and  complicated,  and  its 
results  too  uncertain.  Let  us  see  what  has  been  done  and  what  is 
proposed  as  a  remedy. 

§  34.  The  Wife's  Savings.  —  As  to  the  wife's  right  over  her  own 
savings,  such  progress  as  has  taken  place  results  less  from  the  legis- 
lation itself  than  from  the  manner  of  its  application.  In  reality 
the  provision  inserted  in  the  Law  of  April  5,  1881,  was  far  from 
recognizing  a  right  belonging  properly  to  the  wife. 

An  earlier  attempt  had  already  failed.  In  1872  a  proposal  was 
made  to  the  National  Assembly  to  give  the  wife  power  to  deposit 
in  the  government  savings  institutions  without  the  authorization 

209 


§  34]  PART   I      READJUSTMENT    OF   LAW  [Chap.    IV 

of  her  husband.  The  measure  laid  itself  open  to  the  criticism  that 
it  impaired  the  husband's  power,  and  was  contrary  to  the  principle 
of  the  community  system.  Would  not  the  wife,  it  was  said,  who 
may  alienate  none  of  the  joint  estate,  profit  by  this  right  to  turn 
aside  a  part  of  the  resources  of  the  community  so  as  to  create  a 
separate  fund  of  her  own  ?  Some  years  later,  when  the  proposal  was 
again  broached,  in  order  to  reassure  the  jurists  whose  opposition 
was  feared,  the  principle  of  an  implied  agency  was  suggested.  It 
was  not  a  question,  it  was  said,  of  recognizing  a  right  peculiar  to  the 
wife,  but  merely  of  considering  her  as  having  an  implied  power  from 
her  husband.  When  she  deposited  or  withdrew  funds  from  a  sav- 
ings bank,  she  was  to  be  regarded  as  acting  in  the  name  of  her 
husband,  as  his  representative.  The  latter,  when  he  so  pleased, 
might  revoke  the  power,  notify  the  savings  bank  that  he  opposed 
the  withdrawal  of  the  funds,  and,  consequently,  bring  the  particular 
sum  within  the  community  estate,  of  which  it  had  not  rightfully 
ceased  to  be  a  part.  By  the  terms  of  Article  6  of  the  Law  of  1881 
upon  postal  savings  banks,  married  women,  without  respect  to  the 
property  system  under  which  they  married,  were  permitted  to  open 
accounts  without  their  husbands'  joining  in  the  act.  They  might 
withdraw  the  funds  entered  in  their  passbooks  without  such  assist- 
ance, except  when  he  gave  notice  of  his  opposition. 

(1)  Practice  under  the  Law  of  1881. — The  application  of  the 
law  rapidly  effected  important  results.  As  early  as  1882,  52,345 
requests  to  open  accounts  were  made  by  married  women ;  but 
since  they  were  not  yet  fully  aware  of  the  option  which  they  might 
exercise,  more  than  half  (30,803)  came  provided  with  their  hus- 
bands' authorization.1  Very  soon  the  proportion  was  reversed, 
and  the  custom  spread  of  adding  in  the  request  for  the  account  the 
words  :  "  Without  the  authorization  of  her  husband."  But  since 
even  in  this  case  the  right  of  opposition  subsisted,  how  was  it  to  be 
exercised  ?  The  law  contained  nothing  upon  the  point.  It  would, 
therefore,  seem  that  the  husband  needed  only  to  appear  and  make 
his  relationship  known.  If  married  under  the  system  of  statutory 
community,  the  sums  deposited  by  the  wife  formed  part  of  the 
community  estate.  By  opposing  her  withdrawal  of  the  funds,  he 
himself  set  up  a  claim  to  withdraw  them.  To  this  claim  the  bank 
replied  :  "  Serve  a  formal  notice  of  opposition  upon  us  by  the  usual 
legal  officer."     As  a  result  certain  preliminary  steps  had  to  be  taken 

1  We  have  obtained  this  information  from  the  interesting  report  made 
to  the  "Sooiete  d'etudes  legislatives"  by  Morizot-Thibaidt;  cf.  "Bulletin 
de  la  Societe  d'etudes  legislatives  ",  Vol.  I,  p.  60. 

210 


Chap.  IV]  changes  in  family  law  [§34 

and  the  necessary  costs  advanced  for  the  opposition.  This  formal- 
ity completed,  the  husband  appeared  at  the  bank  and  was  again 
refused.  "  Your  notice  of  opposition,"  he  was  answered,  "  has 
merely  resulted  in  placing  the  sums  deposited  by  your  wife  out  of 
her  reach ;  to  withdraw  them,  bring  us  your  wife's  consent  or  an 
order  of  court."  Thus  the  husband  was  forced  to  engage  in  a  legal 
proceeding,  to  summon  the  bank  as  defendant,  and  to  join  his 
wife  as  a  party.  Expense,  annoyance,  and  complications  followed 
that  were  well  calculated  to  discourage  him.  If  he  persisted,  his 
would  no  doubt  be  the  last  word ;  the  court  would  be  forced  to 
decide  that  the  Law  of  1881  in  no  way  impaired  the  husband's 
powers,  and  that  he  might,  by  his  control  over  the  community 
estate,  dispose  of  the  sums  deposited  by  his  wife.  Logically  it 
would  seem  that  the  bank  should  be  condemned  to  pay  costs,  since 
its  resistance  was  unjustified.  A  few  decisions  have  in  fact  done 
so,  but  the  Tribunal  of  the  Seine  decided  against  it,  no  doubt 
influenced  by  the  particular  facts  of  the  case.  As  a  general  rule, 
the  husband  who  endeavored  to  secure  his  wife's  savings  did  not 
strongly  engage  the  court's  sympathy.  This  practice  and  these 
decisions  succeeded  in  discouraging  opposition.  In  twelve  years, 
out  of  385  notices  of  opposition  served  upon  savings  banks,  270 
were  abandoned  or  payment  was  made  to  both  parties;  115  re- 
mained unsettled,  and  of  these  twelve  only  were  taken  to  the  courts. 
(2)  Tlie  Law  of  1895.  —  Nevertheless,  there  was  a  feeling  that 
the  practice  followed  did  not  conform  to  the  law.  The  desire  to 
reconcile  it  inspired  a  Government  bill.  In  the  draft  of  the  law 
upon  savings  banks,  an  article  expressly  mentioned  the  right  of 
married  women  to  open  accounts,  and,  on  the  demand  of  two  De- 
puties, Lavy  and  Gamard,  the  restriction  which  made  an  exception 
for  the  case  of  the  husband's  opposition  was  suppressed.  Thus 
passed  by  the  Chamber,  the  text  was  adopted  without  observation 
on  first  reading  in  the  Senate.  Before  the  second  reading,  unfor- 
tunately, a  change  was  made ;  the  Chauvet  amendment  called  for 
the  re-establishment  of  the  old  provision.  The  text  of  the  draft 
was  sent  to  committee.  As  Morizot-Thibault  has  put  it,  the  law 
felt  the  heavy  hand  of  a  lawyer.1  The  outcome  was  that  the  Law 
of  July  20,  1895,  did  not  stop  at  perpetuating  the  right  of  opposi- 
tion, but  systematized  and  facilitated  it.  The  government  must 
advise  the  wife  by  registered  letter.  Unless  she  appeals  judicially 
within  one  month  from  her  husband's  opposition,  the  latter  may 
receive  the  balance  on  deposit  if  the  particular  property  system 
1  "  Bulletin  de  la  Soeiete  d'etudes  legislatives  ",  Vol.  I,  p.  62. 

211 


§  34]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

under  which  he  married  gives  him  the  right.  The  wife  is  thus 
placed  in  a  much  less  favorable  position ;  it  is  she  who  must  take 
the  appeal,  engage  in  litigation.  The  husband  need  only  remain 
quiet  and  appear  at  the  termination  of  the  prescribed  period. 

Once  more,  the  formality  of  the  authorities  succeeded  in  cor- 
recting the  law.  To  realize  in* what  way,  it  will  be  necessary  to 
examine  the  circular  of  instruction  of  July  24,  1895,  addressed  by 
the  Ministry  of  Commerce  to  the  directors  of  the  government 
savings  banks :  At  the  expiration  of  one  month,  if  the  wife  has 
taken  no  appeal,  the  husband  may  no  doubt  obtain  payment,  but 
upon  the  following  conditions : 

1.  He  must  bring  the  passbook  constituting  his  wife's  title. 
Thus  payment  is  not  possible  if  the  wife  succeeds  in  keeping  the 
book  or  hiding  it.  It  is  of  no  consequence  that  her  husband  may 
lawfully  require  her  to  give  it  up ;  the  bank  need  not  involve  itself 
in  such  difficulties.  If  the  bank  is  asked  to  deliver  a  duplicate 
passbook,  it  refuses,  the  original  being  neither  lost,  destroyed,  nor 
stolen  from  its  owner. 

2.  The  husband  is  required  to  establish  his  identity,  his  status  as 
husband  of  the  owner ;  he  is  obliged  to  prove  his  right  under  the 
marriage  agreement  by  production  of  a  certified  copy  of  the  minutes 
of  the  marriage,  and  of  the  marriage  contract,  or  proof  that  there 
was  no  agreement.  This  still  does  not  satisfy.  As  demands  for 
withdrawal  of  savings  and  oppositions  are  frequently  incidental  to 
divorce  suits,  he  is  required  to  prove  that  he  is  neither  divorced  nor 
separated.  How  is  he  to  prove  this?  For  the  divorce,  a  recent 
extract  from  the  registry  of  marriages  is  sufficient  if  it  mentions  no 
divorce ;  but  in  the  case  of  legal  separation,  proof  is  more  compli- 
cated. Where  divorce  or  separation  has  been  pronounced,  a  cer- 
tificate of  ownership,  given  by  a  notary,  will  make  known  which  of 
the  two  parties  has  a  right  to  the  payment,  in  view  expressly  of  the 
decree  and  the  liquidation  of  the  respective  estates  reclaimed  by 
husband  and  wife. 

The  circular  of  instructions  closes  with  a  final  observation, 
not  without  irony:  "You  may  besides  require  such  other  addi- 
tional evidence  as  you  may  deem  necessary."  We  may  well 
believe  that,  under  these  conditions,  repayments  will  not  be  numer- 
ous. The  Law  of  1895  increased  the  number  of  oppositions.  In 
the  year  following  its  passage,  the  number  was  double  that  of  the 
preceding  year;  but,  out  of  these  oppositions,  only  three  repay- 
ments were  secured.  In  a  certain  number  of  cases,  there  was 
neither  repayment  nor  relinquishment,  and  as  an  opposition  is 

212 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  35 

effective  only  during  five  years,  if  not  renewed  before  the  expiration 
of  that  period,  it  lapses  of  itself. 

§  35.  The  Wife's  Earnings.  —  Under  the  Civil  Code  the  wife's 
earnings  form  part  of  the  common  assets.  In  reality,  they  were 
generally  paid  to  the  wife,  as  the  implied  agent  of  the  husband. 
But,  as  the  agency  was  always  revocable,  the  husband  did  not 
exceed  his  right  when  he  demanded  that  the  employer  pay  his 
wife's  salary  over  to  him.  The  investigation  undertaken  by  the 
"  Societe  d'Etudes  Legislatives  "  gave  reason  to  believe  that  such 
demands  were  rare.  But  that  the  abuse  was  generally  exceptional 
constituted  no  objection  to  reform.  Rather  was  it  proof  that 
custom  was  in  this  respect  farther  advanced  than  statutory  law ; 
the  reform  ought  to  be  the  more  acceptable  in  that  it  accords  with 
public  opinion. 

This  reform,  long  demanded,  made  ripe  by  the  discussions  and 
reports  of  the  "  Societe  d'Etudes  Legislatives  "/  was  realized  by 
the  Law  of  July  13,  1907,  which  aims  not  only  to  recognize  in  the 
married  woman  a  personal  right  over  her  earnings,  but  at  the  same 
time,  to  insure  the  obligation  of  each  party  to  contribute  to  the 
expenses  of  their  married  life.  As  the  problem  was  to  remedy 
exceptional  situations,  certain  proposals  tended  to  give  a  like 
character  to  the  reform.  Thus  under  the  proposal  of  Dupuy- 
Dutemps,  when  the  husband  jeopardizes  the  interests  of  the  house- 
hold by  his  misconduct,  the  wife  may,  without  demanding  a  legal 
separation  of  their  estates,  obtain  from  the  court  the  right  to  re- 
ceive herself  the  earnings  from  her  work.  So  also  in  the  project 
presented  by  Cauwes  2  to  the  "  Societe  d'Etudes  Legislatives"  the 
register  of  civil  status  must  ask  the  intended  wife  at  the  time  of 
marriage  if  she  proposes  to  reserve  control  over  her  movables  and 
also  the  profits  and  earnings  arising  from  her  labor.  These  pro- 
posals constituted  exceptions  that  were  excessive  and  difficult  of 
acceptance.  Judicial  action  was  a  complicated  remedy,  often 
slow,  and  productive  of  animosity.  The  declaration  made  at 
marriage  seemed  an  act  of  mistrust  such  as  the  woman  would  not 
as  a  rule  dare  to  make.  Moreover,  at  such  a  moment  she  is  not 
conscious  of  the  risks  to  which  she  may  be  exposed. 

It  has  been  judged  wiser  to  give  the  reform  a  more  general  appli- 
cation and  to  admit  a  right  in  all  married  women.     By  Article  1, 

1  A.  Tissier,  "Des  modifications  a  apporter  aux  droits  et  pouvoirs  de  la 
femme  mariee  quant  aux  biens  et  aux  produits  du  travail  et  de  l'industrie  ", 
in  "Bulletin  de  la  Societe  d'etudes  legislatives ",  Vol.  I,  p.  25. 

2  "Bulletin  de  la  Societe  d'etudes  legislatives",  Vol.  I,  p.  203. 

213 


§  35]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

without  exception  as  to  matrimonial  system,  the  wife  acquires  a 
right  in  herself  to  her  profits  and  wages.  As  voted  on  first  reading, 
the  law  authorized  a  waiver  in  the  marriage  contract  of  the  benefit 
of  the  law.  It  was  feared  that  the  waiver  might  become  customary 
and  render  the  reform  illusory.  Any  contrary  provision  in  the 
marriage  contract  was,  therefore,  declared  void.  Thus  the  princi- 
ple established  by  the  Law  of  1907  applies  without  distinction  to 
all  married  women. 

(1)  What  are  Earnings.  —  Over  what  property  does  the  wife 
acquire  this  personal  right?  Here  also  a  broadening  of  the  field 
of  application  of  the  law  was  successful.  At  first  attention  centered 
upon  the  profits  and  wages  of  the  wife  who  was  a  wage-earner  or 
was  employed  out.  The  feme  trader  or  woman  doing  business  on 
her  own  account  was  not  considered.  It  seemed  simpler  not  to 
form  classifications.  It  was  thought  that  the  abuses  occurred  not 
alone  among  the  wage-earning  class ;  in  the  middle  class,  too, 
the  wife  was  often  obliged  to  work  because  of  her  husband's 
neglect. 

The  same  question  arose  as  to  whether  her  right  affected  solely  her 
wages  or  extended  to  her  savings.  A  restrictive  system,  adopted 
by  the  Belgian  Law  of  March  10,  1900,  recognizes  solely  in  the 
wife  the  right  to  receive  her  wages  and  to  employ  them  for  the 
necessities  of  the  home.  If  she  invests  or  uses  them,  her  husband 
preserves  all  his  rights  over  the  securities  acquired.  But  a  reform 
of  this  sort  is  insufficient  and  accomplishes  almost  nothing.  What 
is  most  to  be  feared  is  not  that  the  husband  will  claim  the  wages  as 
paid,  for  we  know  that  an  abuse  of  this  sort  is  rare.  What  most 
frequently  tempts  the  husband  is  the  savings  put  by,  the  invest- 
ments which  the  wife  has  made  with  her  earnings.  It  is  the  pro- 
tection of  this  investment  that  the  law  ought  and  will  insure.  If 
it  does  not,  the  law  is  an  incentive  to  the  wife  to  spend  it,  even 
uselessly.  Often,  moreover,  such  economies  are  made  in  view  of 
an  approaching  expense,  as  the  payment  of  rent  or  the  outfitting 
of  a  child.  It  should  not  be  left  at  the  mercy  of  the  husband  who 
has  not  contributed  to  produce  it.  Thus  the  right  which  the  Law 
of  1907  recognizes  in  the  wife  is  now  understood  in  the  broadest 
sense,  and  includes  the  wages  or  salary  of  any  kind  and  profits 
arising  from  a  profession,  industry,  or  trade  separately  carried  on 
and  the  savings  which  she  puts  aside  from  them. 

As  to  the  property  constituting  the  reserve,  two  possible  systems 
presented  themselves.  It  was  possible  to  arrange  a  partial  separa- 
tion of  estates  or  to  retain  the  reserve  as  a  community  asset. 

214 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  35 

Partial  separation  had  the  advantage  of  simplicity,  of  adapting 
itself  to  every  form  of  matrimonial  system,  and  of  placing  the 
property  constituting  the  reserve  in  a  clearly  defined  position.  The 
wife  acquired  the  complete  control  of  it,  she  retained  it  in  every 
eventuality  and  subject  to  no  partition.  The  system,  however, 
appeared  excessive  to  many  minds.  Was  it  not  possible  to  give 
effective  protection  without  making  so  large  a  breach  in  the  prin- 
ciples of  community?  If  the  husband  works  and  saves  for  the 
community,  is  it  not  unjust  that  the  wife  should  earn  and  save  for 
herself  alone? 

But  the  "  Societe  d'Etudes  Legislatives  "  maintained  that  in  the 
community  system  the  wife's  profits  and  wages  ought  not  to  cease 
to  form  a  part  of  the  community  estate.  They  should  belong  to 
the  joint  assets,  but  should  escape  the  control  of  the  husband.  It 
seems  like  a  duplication  of  the  implied  agency ;  there  were  to  be 
two  managers  instead  of  one,  each  having  his  or  her  own  peculiar 
functions.  The  husband  managed  the  larger  part  of  the  estate 
and  the  wife  the  fraction  forming  her  earnings.  In  this  there  was 
nothing  repugnant  to  the  idea  of  community,  which  consists  essen- 
tially in  the  creation  and  partition  of  a  joint  fund.  Unity  of 
management  is  not  its  essential  character.  The  proof  lies  in  the 
fact  that,  in  the  community  of  the  old  customary  law,  the  wife  was 
associated  only  in  certain  acts  of  the  husband.  The  community 
system,  as  Saleilles  said,1  must  be  made  more  flexible  and  lend  it- 
self to  the  changes  taking  place  in  customs  and  ideas,  or  else  dis- 
appear. 

Such  has  been  the  solution  by  the  legislator.  Where  there  is 
community,  or  community  of  acquests  alone,  the  property  re- 
served forms  part  of  the  joint  estate  and  is  subject  to  the  partition 
of  such  assets.  Under  all  those  matrimonial  systems  not  admitting 
either  of  community  or  of  community  limited  to  acquests,  the 
estate  reserved  remains  separate  to  the  wife ;  as  to  it  she  is  re- 
garded as  under  the  system  of  separation  of  estates. 

(2)  Scope  of  Her  Power.  —  The  Law  of  1907  recognizes  a  large 
power  in  the  wife  over  her  reserved  property.  It  confers  the  same 
rights  of  control  that  are  granted  by  Article  1449  of  the  Civil  Code 
to  the  wife  after  a  decree  of  separation  from  bed  and  board.  It 
goes  even  farther,  for  Article  1  has  decided  in  the  wife's  favor  cer- 
tain questions  with  regard  to  her  reserved  estates  which  had  been 
disputed  in  the  case  of  the  wife  separated  by  judicial  decree.  For 
example,  she  may  place  her  savings  in  personal  and  real  invest- 
1  "Bulletin  de  la  Societe  d'etudes  legislatives",  Vol.  I,  p.  148. 

215 


§  35]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

ments ;  she  may  for  a  consideration  alienate,  without  her  husband's 
authorization,  the  property  which  she  has  acquired ;  she  may  sue 
and  be  sued  without  authorization  upon  all  matters  relating  to 
rights  touching  these  sorts  of  property.  The  only  act  prohibited 
is  the  making  of  gifts. 

Her  reserved  property  may  be  seized  by  her  creditors,  but  is 
exempt  from  attack  by  her  husband's  creditors.  Exception  is 
made,  however,  in  favor  of  those  creditors  who  have  contracted 
with  the  husband  for  household  needs,  provided  that,  under  the 
matrimonial  system  adopted,  the  particular  property  would  have 
been,  prior  to  the  new  law,  in  the  hands  of  the  husband. 

On  the  other  hand  the  husband  and  the  community  estate  are 
not  subject  to  the  debts  contracted  by  the  wife  without  authoriza- 
tion and  within  the  limits  of  her  powers,  upon  the  credit  of  the 
reserved  estate. 

The  formation  of  this  small  reserved  estate  raises  a  somewhat 
difficult  question  of  proof.  The  law  goes  no  further  than  to  declare 
that  the  validity  of  the  wife's  acts  shall  depend  solely  upon  proof, 
offered  by  notarial  deed  or  any  other  means  expressed  in  the  mar- 
riage agreement,  that  she  is  carrying  on  separately  a  trade  distinct 
from  her  husband's.  The  responsibility  of  third  persons  with 
whom  she  has  dealt  upon  furnishing  this  proof  is  not  affected.  In 
case  of  conflict  over  the  origin  or  nature  of  the  property,  the  wife 
may  offer  proof  by  any  means,  even  by  oral  testimony.  Proof  by 
general  report  is  alone  excluded. 

It  seems  wise  to  reserve  to  the  husband  a  power  of  appeal  to 
obtain  the  annulment  of  the  wife's  powers  where  she  abuses  them. 
The  husband  petitions  the  court  in  chambers,  or  even,  in  an  urgent 
case,  he  may  be  authorized  by  a  preliminary  decree  of  a  single 
judge,  to  oppose  the  wife's  projected  acts.  The  judge  will  hear  and 
weigh  the  husband's  complaint.  As  it  did  not  seem  possible  to 
anticipate  every  case  of  abuse,  the  law  merely  cited  as  examples 
the  cases  of  dissipation  of  her  estate,  or  of  imprudence  or  mis- 
management. 

(3)  Effect  of  Dissolution  of  Community.  —  Upon  dissolution  of 
the  community  the  reserved  estate  is  merged  with  the  property 
over  which  the  husband  has  control.  Both  in  fact  equally  form  a 
part  of  the  joint  assets.  Logically  it  was  necessary  to  admit  that 
the  wife,  by  renouncing  community,1  lost  all  right  to  these  assets 
and  consequently  sacrificed  her  savings.     Such  logic  seemed  very 

1  [By  Article  1453  the  wife  after  dissolution  of  the  marriage  may  elect 
to  accept  or  renounce  community.     If  she  accepts,  a  partition  of  the  joint 

216 


Chap.    IV]  CHANGES   IN   FAMILY    LAW  [§  36 

harsh ;  if  the  intention  was  to  maintain  the  principle  that  the 
husband  cannot  either  directly  or  indirectly  touch  the  wife's 
earnings,  it  should  have  been  recognized  that  the  wife,  in  spite  of 
her  renunciation,  could  claim  her  savings.  The  latter  solution, 
already  adopted  by  the  Swiss  law  of  the  Canton  of  Geneva,  became 
also  that  of  the  French  Law  of  1907.  The  wife  who  renounces 
community  on  dissolution  retains  her  reserved  estate  unimpaired 
and  free  of  all  debts  other  than  those  for  which  it  had  been  previ- 
ously pledged.  The  same  right  is  recognized  in  her  heirs,  but  only 
those  in  direct  line. 

§  36.  Penalty  Attaching  to  Marriage  Obligations. — The  reforms 
described  were  of  themselves  insufficient.  Experience  has  shown 
the  necessity  of  more  energetic  guarantees  for  the  reciprocal  obliga- 
tions of  husband  and  wife  and  for  their  duties  towards  their  children. 
It  is  a  problem  that  has  been  given  special  attention  by  the  drafters 
of  the  later  codes.  The  Swiss  Civil  Code  provides  a  series  of  meas- 
ures intended  to  safeguard  the  wife's  interests  :  termination  of  the 
obligation  to  live  with  her  husband,  settlement  of  an  allowance 
for  maintenance,  withdrawal  of  the  husband's  control  over  her 
estate,  granting  of  power  to  the  court  to  order  the  husband's 
debtors  to  pay  in  whole  or  in  part  into  the  wife's  hands. 

In  France,  there  is  no  other  protection  than  a  judicial  order  of 
separation  of  estates,  or  divorce,  or  a  decree  of  separation  from  bed 
and  board.  The  separation  of  their  estates  is  not  a  practical 
solution  for  the  working  woman  ;  divorce  or  a  decree  of  separation 
often  overreaches  the  purpose,  destroying  the  family  life.  The 
new  law  borrowed  the  solution  adopted  in  the  Dupuy-Dutemps 
draft.  The  means  which  it  established  apply  indiscriminately  to 
wife  and  husband. 

Whenever  the  earnings  of  the  husband  or  wife  are  squandered, 
or  either  of  them  fails  to  contribute  proportionately  to  the  ex- 
penses of  the  home,  the  other  consort  may  intervene  by  a  simple 
and  summary  proceeding.  The  party  in  fault  is  summoned  before 
a  justice  of  the  peace  by  a  registered  letter  sent  by  the  clerk  of  the 
court,  stating  the  nature  of  the  complaint.  The  two  parties  must 
then  appear  and  be  heard  together.  The  justice  of  the  peace  may 
authorize  the  complainant  to  make  his  claim  in  the  form  of  an 
attachment  of  a  part  of  the  wages  paid  to  the  defendant  and  earned 
by  the  latter.  The  notice  of  the  judgment  given  to  the  defendant 
and  to  the  third  party  debtor  is  equivalent  to  appropriation  of  the 

estate,  including  assets  and  debts,  takes  place  ;  if  she  renounces  the  joint 
estate,  both  assets  and  liabilities  go  to  the  husband  absolutely.  —  Tra  nsl.] 

217 


§  36]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

sums  of  which  attachment  was  authorized.  The  judge's  decision 
may  be  executed  without  stay,  although  it  is  contested  or  appealed 
and  although  no  security  is  entered. 

This  is  without  a  doubt  a  first-rate  penalty,  but  it  is  too  often 
ineffectual.  To  escape  attachment  of  the  wages,  it  is  enough  to 
change  one's  domicile  or  place  of  employment.  We  favor  the 
adoption  of  a  more  energetic  measure,  borrowed  from  the  criminal 
law,  embodying  the  penalty  of  imprisonment  against  a  husband 
who  neglects  to  provide  necessities  for  his  wife  and  minor  children. 
Several  foreign  legislations  already  furnish  examples.  In  the 
State  of  Massachusetts  an  Act  of  April  17, 1885,  created  a  penalty 
not  exceeding  twenty  dollars  or  imprisonment  not  exceeding  six 
months  for  one  who  unreasonably  neglects  to  provide  for  the  sup- 
port of  his  wife  or  minor  child.  Article  1  of  the  Norwegian  law  of 
July  6,  1892,  obliges  the  father,  if  he  abandons  his  wife  and  children, 
to  provide  support  in  proportion  to  his  resources,  the  amount  being 
determined  by  an  order  of  court.  If  he  avoids  his  obligation  with- 
out there  being  any  property  upon  which  execution  can  be  had,  he 
may  be  arrested  and  placed  in  an  institution  at  hard  labor  until  he 
has  paid  or  given  security.  The  term  of  imprisonment  may  not 
exceed  three  months.  Finally,  there  is  the  Criminal  Code  of  the 
Canton  of  Neuchatel,  which  provides  by  Article  207  that  "  Any 
person  who,  being  able  by  work  or  having  other  means  to  supply  the 
needs  of  relatives  in  direct  lines,  ascendants  or  descendants,  hus- 
band or  wife,  nevertheless  leaves  them  in  want,  or  abandons  his 
family,  leaving  it  without  resources,  shall  be  punished  by  imprison- 
ment not  exceeding  six  months  or  less  than  one  month,  or  by  lodg- 
ment for  not  less  than  one  year  or  more  than  three  years  in  an 
institution  at  hard  labor ;  in  addition  he  may  be  deprived  of  his 
civil  rights  for  a  period  of  ten  years." 

We  are  far  from  believing  that  penalties  suffice  for  everything. 
But,  because  their  operation  is  imperfect,  we  need  not  conclude 
that  they  are  without  effect.  The  causes  of  a  social  phenomenon 
are  always  infinitely  complex.  It  is  not  possible  to  suppress  all ; 
but  we  may  at  least  modify  or  influence  certain  of  them.  And 
there  seems  no  doubt  but  that  one  of  the  causes  for  an  abandon- 
ment of  family  is  its  impunity.1 

1  Cf.  "Do  la  neoessite  d'eriger  l'abandon  de  famille  en  delit",  in  "Bulle- 
tin de  la  Societe  d'etudes  legislatives",  Vol.  I,  p.  76. 


218 


Chap.    IV]  CHANGES  IN  FAMILY  law  [§  37 

IX.    Status  of  Minors:  (1)  Abandoned  Children 

§  37.  Two  Conceptions  of  Parental  Power.  —  The  history  of  the 
status  of  the  child  has  often  been  likened  to  the  history  of  the  status 
of  the  married  woman.1  Two  great  currents  of  ideas  have  contrib- 
uted to  fix  the  system  of  law  governing  parental  powers  in  the 
principal  legislations  of  Europe.  The  first  came  from  the  Roman 
law,  the  second  from  Germanic  law.  According  to  Roman  ideas, 
parental  power  was  a  right  established  in  favor,  and  in  the  interest 
of,  the  party  exercising  it.  To  this  conception  was  opposed  the 
maxim  of  the  customary  law,  first  formulated  in  the  Customary  of 
Senlis,  in  1539,  and  generalized  by  Loysel,  who  reproduced  it  in  his 
"  Institutes  "  :  "  There  is  no  right  of  parental  authority."  This 
rule,  often  misunderstood,  simply  means  that  the  "  patria  potes- 
tas  "  of  the  Roman  law  was  not  accepted  in  the  provinces  of  cus- 
tomary law.  It  did  not  mean  that  children  were  not  subjected  to 
any  authority  at  all,  but  merely  that  the  authority  rested  upon 
other  principles  and  had  other  limitations  than  in  Roman  law. 
The  general  idea  was  that  it  was  not  created  for  the  benefit  of  the 
father,  and  that  it  was  no  more  than  a  power  of  protection  devel- 
oped in  the  interest  of  the  child. 

From  this  has  flowed  a  series  of  consequences :  (1)  It  belongs 
both  to  the  father  and  mother.  The  father  exercises  it  alone  dur- 
ing marriage ;  but  after  dissolution  of  the  marriage  or  in  case  of  a 
suspension  of  his  rights,  its  exercise  passes  to  the  mother.  (2)  It 
ceases  when  the  child  no  longer  has  need  of  protection.  Thus, 
parental  power  terminates  when  the  child  becomes  of  age,  and  that 
was  fixed  by  most  of  the  Customs  at  twenty-five  years  ;  or  it  may 
end  by  emancipation  before  the  age  of  majority,  by  the  father's 
express  or  implied  act.  It  is  worthy  of  note  that  emancipation 
was  admitted  to  result  impliedly  from  marriage.2  "  Hearth  and 
home  emancipate",  it  was  said ;  "  married  children  lose  both 
bread  and  meat;"  that  is,  they  are  regarded  as  emancipated. 
"  A  man  and  woman  when  married  are  considered  emancipated." 
Holding  certain  offices  of  dignity  entailed  quite  commonly  the 
same  consequence ;  as  examples  may  be  cited  several  judicial 
offices,  the  bishopric  and  even,  in  certain  Customs,  as  in  those  of 
Bourbonnais,  the  priesthood.  (3)  Parents  had  over  the  property 
of  their  children  a  mere  power  of  management  without  obligation 
to  account.     We  must  also  mention,  however,  the  institution  of 

1  Paul  Viollet,  "Histoire  du  droit  fran^ais",  p.  418. 

2  "Coutunie  de  Paris",  Art.  239. 

219 


§  37]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

"  nobleman's  custody  "  and  of  "  plebeian  custody",  which  con- 
ferred upon  the  parents  the  rental  of  the  property  under  their 
management  during  the  child's  minority. 

Such  were  the  chief  differences  between  the  two  systems.  The 
long  struggle  between  the  two  conceptions  ended  in  the  triumph 
of  one  of  them.  Parental  power  ceased  to  be  a  right  in  favor  of 
the  person  exercising  it,  and  became  a  simple  power  of  protection, 
a  means  by  which  the  father  fulfils  his  duty  toward  his  child. 
"  Nothing  less  resembles  the  parental  power  of  the  ancient  law," 
said  Berlier,  in  the  course  of  the  drafting  of  the  Civil  Code,1  "  than 
the  authority  of  the  father  and  mother,  which  forms  the  subject 
of  Title  IX;  we  used  new  words  to  express  new  ideas."  Care 
was  in  fact  taken  to  avoid  the  term  "  parental  power."  It  is  still 
found  in  the  caption  of  the  Title,  but  in  all  the  articles  of  the  Code 
the  word  "  authority  "  was  substituted.  "  The  authority  of  the 
father  and  mother  over  their  children,"  said  Albisson,2  "  having  no 
other  direct  cause  or  object  than  the  latter's  welfare,  is  not,  properly 
speaking,  a  right,  but  only  a  means  of  accomplishing  fully  and 
without  hindrance  an  indispensable  and  sacred  duty." 

(1)  Conception  of  tlie  Civil  Code.  —  So  the  Civil  Code  found  in 
parental  authority  merely  a  means  of  protecting  and  safeguarding 
the  child's  rights.  It  went  no  further,  however,  than  to  establish 
this  principle,  without  systematizing  means  or  attaching  penalties. 
We  are  told  in  a  general  manner  by  Article  203  of  the  Civil  Code, 
that  parents  must  bring  up  their  children  ;  that  is  (as  the  prepara- 
tory report  of  the  codifiers  formally  declared)  educate  them.  The 
principle  of  obligatory  education  was  thus  virtually  recognized. 
The  Law  of  March  28,  1882,  has,  properly  speaking,  merely  devel- 
oped the  consequences  of  this  principle  by  determining  its  scope 
and  the  penalty  for  its  infraction. 

Similarly  the  Civil  Code  was  not  concerned  with  indicating  how 
the  performance  of  this  duty  of  education,  imposed  upon  the  father 
and  mother,  might  be  secured.  It  is  very  certain  that  the  obliga- 
tion created,  by  mutuality,  a  right  in  the  child  and,  in  our  legal 
system,  every  right  gives  rise  to  a  remedy.  But  who  may  exercise 
this  remedy?  The  child  cannot  act  by  himself,  unless  of  age ;  and 
by  that  time,  he  can  himself  normally  meet  his  own  needs.  Dur- 
ing minority,  he  is  in  principle  represented  by  his  father.  But 
obviously   the   father   cannot   sue   himself.     The   situation   was 

1  Session  of  the  Council  of  State,  26  Frimaire,  year  X;  cf.  Locre,  Vol. 
III.  p.  315. 

2  Locrt,  Vol.  Ill,  p.  342. 

220 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  38 

embarrassing,  and  for  a  long  time  text-writers  made  vain  efforts  to 
escape  from  it.  Certain  authors  held  that  an  action  could  be 
brought  by  the  mother  against  the  father  during  marriage ;  that 
after  the  death  of  one  of  the  parents,  it  might  be  brought  by  the 
assistant  guardian  against  the  surviving  legal  guardian  ;  and  lastly, 
that  if  none  performed  their  duty,  the  public  prosecutor  might 
intervene.  In  short,  like  the  penalty  attaching  to  the  duty  to 
educate,  the  civil  action  existed  in  theory  ;  it  was  in  reality  almost 
impossible  to  enforce. 

These  deficiencies  and  omissions  of  the  Civil  Code  have  been 
partly  met  by  the  Law  of  July  24,  1889.  Before  the  realization  of 
this  reform,  the  legislator  had  been  led,  in  a  certain  number  of 
cases,  to  take  measures  intended  to  safeguard  the  child's  right  to 
education.  But  they  were  isolated  measures.  We  have  already 
mentioned  the  Law  of  March  28,  1892,  observing  that  this  law 
defined  and  protected  the  obligation  of  the  parents  to  see  to  the 
education  of  their  children.  We  may  also  mention  two  sorts  of 
provisions,  the  one  penal,  providing  a  penalty  for  parents  who 
abandon  or  maltreat  their  children  ;  the  other  permitting  the  State 
to  become  a  substitute  for  the  family  which  has  been  unable  or 
unwilling  to  perform  its  duties  toward  the  child.  The  State  is  thus 
led  to  assume  ever  wider  attributes.  Nothing  is  more  striking  than 
the  progressive  extension  of  the  activity  of  that  branch  of  the 
Government  created  in  relief  of  children.  This  branch,  which  at 
first  included  only  abandoned  orphans  and  children,  has  since  been 
extended  to  neglected  children,  and  finally  has  come  to  include 
vicious  and  intractable  children,  whom  the  State  endeavors  to 
subject  to  a  disciplinary  regime. 

§  38.  State  Relief  of  Abandoned  Children.  —  The  first  case  with 
which  we  have  to  deal  is  that  of  parents  who  evade  their  duty  or 
find  themselves  in  a  position  where  they  cannot  fulfil  it. 

The  legislation  governing  the  State  relief  of  minors,  regulated 
and  coordinated  by  the  Law  of  June  27,  1904,  was  for  a  long  while 
contained  in  two  acts  of  the  Imperial  period  :  the  Law  of  15 
Pluviose,  year  XIII,  and  the  Decree  of  January  19,  1811.  The 
law  of  Pluviose,  of  the  year  XIII,  created  the  system  of  control  of 
children  admitted  to  asylums;  the  Decree  of  1811  established  the 
conditions  under  which  children  might  benefit  by  State  aid,  dividing 
them  into  three  categories:  foundlings,  abandoned  children,  and 
poor  orphans.  These  laws  have  not  always  been  applied  in  the 
same  spirit.  The  practice  has  varied  not  only  according  to  period, 
but  according  to  locality.     In  fact,  State  aid  of  minors  has  been 

221 


§  38]  PART    I      READJUSTMENT    OF   LAW  [Chap.    IV 

and  still  is  a  local  Departmental  matter.  The  General  Council 
of  the  Department  may  support  it  more  or  less  generously,  or 
restrict  or  extend  its  action  at  its  pleasure. 

It  will  perhaps  not  be  without  value  in  this  study,  which  is 
intended  to  note  the  changes  which  the  law  has  undergone  in 
practice,  to  point  out  at  this  time  the  variations  in  this  practice. 

At  first  the  practice  under  these  laws  was  very  favorable  to  the 
administration  of  the  task.  The  Decree  of  1811  created  an  asylum 
where  children  could  be  left,  in  each  municipality,  and  each  of  these 
asylums  was  obliged  to  have  a  gate  where  a  child  might  be  left  at 
any  time  without  questions  asked.  As  is  well  known,  this  gate  was 
a  sort  of  revolving  cage  opening  upon  the  street.  In  this  cage  the 
child  was  received.  A  bell  was  handy  to  warn  the  keeper;  the 
gate  closed  as  the  cage  turned  upon  itself ;  and  the  child  was  re- 
ceived with  no  evidence  to  betray  the  secret  of  its  birth.  Facili- 
tated in  this  way,  the  number  of  cases  of  abandonment  tended 
to  increase  continually.1  In  1810,  the  number  of  children  thus 
received  was  70,558;  in  1815,  84,000;  in  1821,  105,000;  in  1825, 
117,305 ;  in  1838,  127,307.  This  important  increase  in  the  figures 
was  not  the  only  question  to  be  considered.  It  was  also  plain 
that  the  practice  of  the  secret  gate  jeopardized  more  lives  than  it 
saved.  Brought  from  afar  by  persons  who  took  no  care  of  them, 
making  a  regular  business  of  such  transportation,  these  children 
died  in  great  numbers.  A  reaction  set  in  ;  it  began  by  the  establish- 
ment of  a  watch  over  the  approaches  to  the  gates.  Little  by  little 
they  were  suppressed.  The  greatest  number  open  at  any  one  time 
was  251 ;  there  were  232  in  1818 ;  in  1869  there  remained  only 
five,  which  since  then  have  been  closed.  In  place  of  this  system, 
which  experience  seemed  to  condemn,  was  everywhere  substituted 
one  of  admission. 

(1)  Practice  under  State  Relief  Law.  —  In  Paris,  admission  was 
not  conditioned  upon  any  formality  intended  as  a  restriction. 
"  The  General  Council  of  the  Department,"  said  Leon  Lallemand,2 
"  takes  as  a  guiding  principle  respect  for  the  secret  of  the  family 
involved  and  the  necessity  above  all  of  safeguarding  the  infant 
life;  the  question  of  expense  is  a  second  consideration."  The 
mother  comes  with  her  child  before  an  employee  of  the  Bureau  of 
State  Relief.  The  only  thing  required  of  her  is  the  child's  birth 
certificate.  Often  this  certificate  tells  nothing,  since  the  child  in  a 
large  number  of  cases  is  declared  to  have  been  born  of  unknown 

1  Cf.  Levasseur,  "Population  fran^aise",  Vol.  II,  p.  61. 

2  "Histoire  des  enfants  abandonnes",  p.  278. 

222 


Chap.    IV]  CHANGES   IN   FAMILY   LAW  [§  38 

parents.  But  if  there  is  any  reason  why  the  certificate  cannot  be 
produced,  admission  may  still  be  granted.  The  mother  is  informed 
that,  by  consenting  to  keep  her  child,  she  can  obtain  milk  for  it. 
She  is  even  urged  to  take  this  course ;  but  if  she  persists  in  her 
demand,  the  child  is  never  refused.  However,  the  right  is  reserved 
not  to  make  known  the  place  where  the  child  will  be  kept.  She  is 
warned  that  she  can  only  receive  news  of  it  four  times  a  year,  and 
that  the  news  will  merely  be  whether  the  child  is  alive  or  dead. 
This  is  the  only  harsh  provision  that  survives  in  the  formalities 
attending  an  abandonment.  Experience  has  shown  that  it  was 
the  sole  means  of  avoiding  innumerable  abuses ;  but  the  manage- 
ment of  the  asylums,  who  have  desired  merely  a  means  to  protect 
themselves,  admit  in  practice  many  moderations  of  the  rule.  The 
locality  of  the  child  is  not  always  kept  an  inexorable  secret,  and 
frequently  ties  are  permitted  to  grow  or  continue  between  the 
family  of  origin  and  the  child  who  has  been  admitted. 

In  the  Provinces,  on  the  other  hand,  the  rules  observed  were  quite 
different.  The  policy  in  force  was  almost  everywhere  very  restric- 
tive. The  General  Councils  of  the  Departments,  which  had  been 
authorized  by  the  Law  of  August  10,  1871,  to  regulate  the  organiza- 
tion of  the  State  relief  for  children,  determined  the  forms  and  con- 
ditions of  admission.  Many  Departments  were  mainly  concerned 
with  limiting  their  expenses,  and  to  this  end  imposed  conditions  of 
a  nature  to  render  the  admissions  few.  There  were  conditions  of 
residence  and  of  origin  ;  there  was  the  requirement  of  a  preliminary 
investigation,  and  the  exclusion  of  legitimate  children.  The  Law 
of  June  27,  1904,  generalized  the  liberal  practice  followed  by  the 
Department  of  the  Seine.  Articles  8  and  9  of  this  law  require  that 
the  bureau  of  admission  shall  be  open  day  and  night,  and  that 
admission  of  a  child  appearing  less  than  seven  months  old  may  not 
be  refused.  While  facilitating  admission,  effort  is,  nevertheless, 
made  to  encourage  so  far  as  possible  the  acceptance  of  another 
system  of  relief,  that  of  the  supply  of  milk.  This  leaves  the  child 
with  its  parents  and  has  the  advantage  of  being  cheaper  for  the 
Department.  The  child,  having  received  an  order  of  admission,  is 
thereafter  placed  under  the  authority  of  the  Bureau  of  State  Re- 
lief. By  Article  11  of  the  Law  of  1904,  the  protection  of  children 
of  all  classes  and  the  guardianship  of  beneficiaries  of  State  Relief 
are  within  the  jurisdiction  of  the  Prefect,  or  his  representative,  the 
Departmental  inspector.  In  the  Department  of  the  Seine  these 
duties  are  exercised  by  the  Director  of  the  Bureau  of  State  Relief 
of  Paris.     As  guardian  he  is  assisted  by  a  "  family  council  "  con- 

223 


§  38]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

sisting  of  a  commission  composed  of  seven  members  elected  by 
the  General  Council  of  the  Department  and  reelected  every  four 
years. 

In  short,  it  is  evident  that  the  admission  of  children  to  the  assist- 
ance of  the  Bureau  of  State  Relief  involves  consequences  almost 
equally  important  in  law  and  fact.  The  child  without  known 
parents,  or  what  amounts  to  the  same  thing,  the  child  who  has 
been  abandoned  by  its  parents,  is  in  a  true  sense  adopted  by  the 
State.  It  is  in  fact  the  State  which  must  supply  its  needs,  bring 
it  up,  educate  it,  and  aid  in  finding  it  a  position  and  in  playing  a  use- 
ful part  in  life.  It  is  in  a  sense  an  application  of  communism,  and 
we  might  add  that  this  fact  also  constitutes  its  evident  condemna- 
tion. It  is  not  only  that  such  a  life  for  a  child,  in  spite  of  all  that 
public  charity  can  do  for  it,  appears  as  the  worst  of  two  evils,  a 
pitiful  abnormality ;  it  is  rather  that  the  State  finds  itself  forced  to 
admit  that  it  can  succeed  in  the  role  undertaken,  that  of  replacing 
a  family,  only  by  calling  in  another  family.  In  fact,  the  adminis- 
tration of  the  State  Relief  does  not  itself  raise  the  child  in  the 
asylums  and  wards  provided.  Its  constant  practice  is  to  endeavor 
to  place  the  child  with  some  family ;  and  it  may  be  said  that  the 
child's  future  depends  largely  upon  this  choice  of  a  home.  If  it 
finds  only  hard  and  rough  masters  where  it  is  placed,  it  is  almost 
inevitably  lost  to  society.  On  the  contrary,  if  treated  with  kind- 
ness and  loved,  if  it  finds  in  a  word  a  new  home,  it  has  a  chance  of 
adjusting  itself  to  its  new  environment,  of  being  happy  and  becom- 
ing an  honest  citizen. 

When  we  turn  to  statistics  to  learn  what  becomes  of  children 
who  receive  State  relief,  we  find  that  a  fairly  large  number,  about 
one  tenth,  are  withdrawn  before  becoming  of  age  and  restored  to 
their  parents.  When  a  child  is  reclaimed  by  its  parents,  it  may  be 
restored  if  its  guardian  finds,  after  consulting  with  the  "  family 
council  ",that  such  a  change  is  in  its  interest.  The  administration 
may,  besides,  authorize  the  child  to  be  returned  to  its  parents  on 
probation,  and  during  the  period  of  probation  the  supervision  of  the 
State  Relief  continues  for  at  least  a  year.  At  the  expiration  of  that 
period,  the  restoration  becomes  definite. 

X.   Status  of  Minors:  (2)  Neglected  Children 

§  39.  Protection  against  Parents.  —  In  all  periods  a  greater  or 
less  solicitude  has  been  felt  for  orphans,  cripples,  and  parentless 
children  ;  but  it  is  only  very  recently  that  attention  has  been  paid 

224 


Chap.    IV]  CHANGES   IN   FAMILY  LAW  [§  40 

to  neglected  children  ;  by  whom  we  mean  children  who  have  need 
of  being  protected  against  their  parents. 

The  number  of  such  children  will  never  be  known.  It  is 
enormously  greater  than  we  might  surmise.  We  may  at  least 
get  some  idea  of  the  importance  and  gravity  of  the  evil  by 
reading  (to  mention  but  a  single  document)  the  report  upon 
the  exploitation  of  children  presented  in  1892  by  Georges 
Berry  to  the  Municipal  Council  of  Paris.  It  would  seem  that 
such  exploitation  had  become  an  almost  public  profession  in  the 
cities,  and  what  is  more,  a  very  lucrative  one.  We  can  imagine 
the  sufferings  of  these  little  children  —  pale  and  suffering,  ex- 
posed to  the  weather,  carried  in  arms  to  excite  the  pity  of  the 
passer-by  —  when  we  realize  that  parents  receive  a  franc  and  a 
half  to  two  francs  a  day  for  the  loan  of  their  child,  and  three  or 
four  francs  a  night,  according  to  the  circumstances  and  the  se- 
verity of  the  weather. 

For  this  class  of  children,  private  charity  is  powerless.  If  the 
child  is  a  victim  of  the  brutality  or  evil  example  of  its  parents,  what 
can  charity  do?  It  can  not  free  the  child  from  its  parents.  If 
you  are  accosted  on  the  street  by  a  tiny  beggar,  and  you  refuse  it 
alms,  you  are  without  heart ;  and  yet,  if  you  give,  you  encourage 
the  inhuman  exploitation  of  which  it  is  a  victim. 

§  40.  Relief  Legislation.  —  State  relief,  at  least  in  Paris,  has 
not,  however,  remained  entirely  inactive.  Alongside  the  aid  fur- 
nished to  abandoned  children,  the  General  Council  for  the  Depart- 
ment of  the  Seine  organized  in  1881  a  service  in  aid  of  the  neglected, 
applicable  to  certain  classes  of  children,  notably  those  "whose  par- 
ents, by  reason  of  chronic  illness,  indigence,  or  the  nature  of  their 
employment,  or  by  reason  of  their  vices,  declare  that  they  are  un- 
able to  watch  over  and  provide  for  their  children."  This  service  be- 
came well  established  and  developed  rapidly.  From  1881  to  1889 
it  succeeded  in  enrolling  each  year  from  seven  to  eight  hundred 
children.  Meanwhile  private  initiative  had  organized  several 
charities,  among  them,  the  "  Societe  Generate  de  Protection  pour 
l'Enfance  Abandonnee  ou  Coupable  ",  created  in  1879  by  Georges 
Bonjean  ;  the  "  Union  Francaise  pour  le  Sauvetage  de  l'Enfance", 
founded  under  the  presidency  of  Jules  Simon  in  1888,  which  at  the 
end  of  that  year,  after  a  few  months'  existence,  had  already  handled 
144  cases  and  had  received  and  definitely  placed  in  homes  as  many 
as  37.  Unfortunately  the  law  too  often  renders  all  such  acts  of 
devotion  nugatory.  To  receive  the  children,  the  consent  of  their 
parents  was  necessary ;  it  was  also  necessary  in  order  to  keep  pos- 

225 


§  40]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

session  of  them.  And  yet  in  many  cases  it  was  against  their  parents 
themselves  that  it  was  necessary  to  protect  them. 

(1)  Law  of  1889.  —  Thus  the  need  of  legislative  reform  became 
imperative.  The  initiative  came  from  the  "Societe  des  Prisons", 
which  had  as  early  as  1878  made  this  problem  the  object  of  an 
important  report  by  the  Protestant  minister  Robin.1  His  conclu- 
sions led  to  numerous  discussions,  and  became  the  occasion  for  new 
studies  in  which  figured  almost  all  the  philanthropists  who  had 
contributed  to  the  elaboration  or  enforcement  of  the  laws  in  protec- 
tion of  children.  January  27,  1881,  a  draft,  in  the  nature  of  a 
conclusion  from  these  debates,  was  presented  to  the  Senate  by 
Roussel  and  several  others.  A  few  months  later  the  same  body  was 
called  upon  to  consider  another  draft  prepared  by  an  extra-parlia- 
mentary commission  and  adopted  as  the  Government  bill.  But, 
after  long  vicissitudes,  all  steps  were  halted  by  the  magnitude  of  the 
plan,  which  completely  remodelled  the  legislation  in  protection  of 
abandoned  children ;  by  the  increase  in  the  financial  burden 
involved  in  its  adoption ;  and  by  the  difficulty  of  even  estimating 
the  expenses. 

To  save  at  least  part  of  the  reform,  the  Government  de- 
cided to  omit  the  most  important  provisions  from  the  body  of 
the  draft,  sacrificing  those  that  would  occasion  the  greatest  ex- 
pense. It  was  this  restricted  plan  that  became  the  Law  of  July 
24,  1889. 

This  Law  is  concerned  primarily  with  neglected  children,  and 
divides  them  into  two  classes :  (1)  those  who  are  in  moral  danger 
through  the  delinquency  or  vices  of  their  parents ;  (2)  those  left 
without  watching  by  their  parents  by  reason  of  indigence,  sickness, 
or  any  other  cause.  In  the  first  case,  that  of  the  unfitness  of  the 
parents,  the  statute  deprives  them  of  their  rights.  When  they  are 
not  unfit  but  merely  in  a  position  where  they  are  unable  to  fulfil 
their  duties,  the  statute  authorizes  the  courts  to  decree  a  transfer 
of  the  parental  power,  investing  it  in  persons  or  charitable  bodies 
who  consent  to  take  the  children.  Of  these  two  divisions  of  the 
Law  of  1889,  it  may  be  said,  as  did  Bruyere,2  that  they  are  in 
reality  two  distinct  laws  embodied  in  one.  The  one  decreeing  the 
forfeiture  of  the  parental  power,  would  appear  primarily  penal  in 
character ;  the  other,  which  tends  in  practice  to  assume  a  predomi- 
nant influence,  is  a  law  of  State  Relief. 

1  "Bulletin  de  la  Societe  des  prisons"  (1878),  p.  798. 

2  "La  loi  de  1889  et  son  application"  ;  report  to  the  "Comite  de  defense 
des  enfants  traduits  en  justice  ",  p.  17. 

226 


CHAP.    IV]  CHANGES   IN   FAMILY   LAW  [§  42 

§41.  Forfeiture  of  Parental  Authority.  —  The  provisions  con- 
tained in  the  first  part  of  this  bill  answers  three  questions :  When 
may  forfeiture  of  the  parental  authority  be  pronounced?  What 
procedure  shall  be  followed,  and  what  are  the  effects  of  the  for- 
feiture ?     How  may  the  forfeiture  terminate  ? 

The  law  distinguishes  two  classes  of  cases ;  one  particularly 
heinous,  in  which  the  parents'  forfeiture  is  compulsory ;  the  other 
in  which  the  forfeiture  is  optional.  The  cases  of  compulsory  for- 
feiture are  enumerated  in  Article  1.  In  all  these  cases  the  for- 
feiture presupposes  not  only  a  judgment  entered  against  the  parents, 
but  a  judgment  for  a  crime  or  wrong  committed  against  the  child, 
or  for  a  crime  committed  by  the  child  in  which  the  parents  have 
participated  as  accessories  or  accomplices.  Under  these  conditions 
we  do  not  believe  that  it  is  possible  to  reproach  the  law,  as  has 
sometimes  been  done,1  with  excessive  rigor  in  declaring  the  for- 
feiture compulsory. 

Our  regret  is  rather  that  the  authors  of  the  Law  of  1889,  in  de- 
claring the  forfeiture,  did  not  understand  the  necessity  of  providing 
for  the  observance  of  their  rules.  The  public  prosecutor  is  not 
bound  to  see  to  their  precise  enforcement.  In  fact,  it  frequently 
happens  that  he  forgets  or  neglects  to  do  so,  and  that  the  judg- 
ment makes  no  mention  of  the  forfeiture.  Many  writers  admit,  it 
is  true,  that  in  such  case  the  disability  of  the  parent  results  without 
having  been  expressly  stated.  But  that  is  an  opinion  which  has 
scarcely  more  than  a  theoretic  interest.  Experience  has  shown 
that  unless  the  forfeiture  is  declared  it  is  in  reality  without  ef- 
ficacy; it  is  not  carried  out,  and  no  one  bothers  about  the 
children. 

The  cases  of  optional  forfeiture  are  enumerated  in  Article  2. 
The  first  four  assume  a  prior  criminal  sentence  against  the  parents  ; 
in  the  last  two,  on  the  other  hand,  the  forfeiture  may  take  place 
without  sentence. 

The  sentence  mentioned  is  not  alone  that  resulting  from  partic- 
ular crimes  or  wrongs ;  paragraph  1  has  a  general  character  and  is 
applicable  to  all  parents  sentenced  to  criminal  punishment  for  an 
act  within  the  common  law. 

§  42.  Forfeiture  without  Penal  Sentence.  —  The  most  striking 
cases  are  those  where  forfeiture  may  be  pronounced  even  without  a 
penal  sentence.  The  first  of  these  is  where  a  child  under  sixteen 
years  has  been  sent  to  a  reformatory  under  Article  66  of  the  Penal 

1  Cf.  de  Gavardie's  speeches  in  the  Senate,  May  26,  July  7,  1883  :  "Jour- 
nal officiel  ",  pp.  569,  836. 

227 


§  42]  PART   I      READJUSTMENT    OF   LAW  [Chap.    IV 

Code.  It  was  thought  that  in  such  a  case  the  child's  delinquency 
is  most  often  explainable  by  the  want  of  care  or  the  bad  example 
of  the  parents. 

This  is  the  provision,  as  we  have  said,  that  opens  the  widest  field 
to  the  operation  of  forfeiture.  The  courts  may  pronounce  the 
forfeiture  against  a  father  and  mother  who  have  incurred  no  sen- 
tence, but  who  by  habitual  drunkenness  or  by  notorious  and  scan- 
dalous misconduct  or  ill-treatment,  endanger  the  health,  safety,  or 
moral  well-being  of  their  children.  In  reality  this  single  provision 
embraces  and  supplements  all  the  others,  and  it  is,  therefore,  the 
one  that  is  invoked  in  the  majority  of  cases.  The  law  leaves  a 
broad  discretion  in  the  judge ;  and  it  is  very  clear  why,  in  its  cir- 
culars of  instruction  relative  to  the  application  of  the  law,  the 
Department  of  Justice  recommends  to  the  public  prosecutor  to  ex- 
ercise his  powers  with  great  circumspection.  But  this  is  not  the 
danger,  at  least  up  to  the  present  time,  that  disturbs  those  inter- 
ested in  infant  protection.  We  shall  see,  when  we  endeavor  to 
estimate  the  importance  of  the  results  obtained,  that  the  courts 
more  justly  deserve  the  reproach  of  having  exaggerated  the  pru- 
dence counselled  by  the  Minister  of  Justice. 

The  legal  action  to  obtain  a  forfeiture  may  be  commenced  only 
by  certain  relatives  or  by  the  public  prosecutor.  According  to  the 
terms  of  Article  3,  the  relatives  entitled  to  bring  the  action  are  first 
cousins  or  nearer.  In  reality,  in  most  cases  where  forfeiture  may 
be  declared,  the  family  has  been  destroyed  or  disrupted.  It 
almost  always  happens  that  the  sole  initiative  that  can  be  counted 
upon  is  that  of  the  public  prosecutor. 

Two  jurisdictions  may  be  called  upon  to  take  cognizance  of  the 
action.  Normally,  jurisdiction  belongs  to  the  civil  tribunal  of 
the  domicile  or  residence  of  the  father  or  the  mother  of  the  child  ; l 
exceptionally,  the  criminal  courts  when  pronouncing  a  sentence 
such  as  will  allow  a  forfeiture,  may  then  declare  the  forfeiture  at 
once,  if  they  consider  themselves  sufficiently  in  possession  of  the 
circumstances.2  The  procedure  in  this  latter  case  may  be  very 
rapid.  On  the  contrary,  when  the  action  is  brought  before  the 
civil  courts,  the  examination  of  the  case  becomes  much  more 
complicated  ;  for  the  statute,  based  upon  provisions  of  the  Code  of 
Civil  Procedure  relating  to  the  loss  of  civil  rights,  prescribes  a 
series  of  formalities  into  the  detail  of  which  we  may  not  enter  here. 

In  all  the  features  of  this  procedure  a  twofold  legislative  inten- 
tion is  apparent.     It  has  aimed  both  at  rapidity  by  invoking  the 
1  Art.  3.  2  Art.  9. 

228 


Chap.    IV]  CHANGES   IN   FAMILY  LAW  [§  43 

jurisdiction  of  the  court  in  chambers,  and  at  the  same  time  at 
preserving  for  the  hearing  a  special  importance  by  surrounding  it 
with  certain  guarantees.  But  these  intentions  are  very  difficult 
to  reconcile.  When  we  wish  to  advance  prudently,  we  must  be 
resigned  not  to  move  rapidly.  And  this  very  thing  has  happened. 
In  actual  practice  we  see  how  dilatory  this  procedure  has  been 
made  by  the  need  of  fulfilling  so  many  formalities.  Its  dominant 
character  becomes  evident :  It  is  too  minute  and  complex. 

§  43.  Effects  of  Forfeiture.  —  Let  us  suppose  that  the  action 
has  terminated  and  the  sentence  been  imposed.  What  will  be 
the  consequences  of  the  forfeiture?  The  law  appears  extremely 
rigorous  in  this  respect.  It  admits  of  no  distinction  :  forfeiture 
is  absolute.  It  applies  to  all  children  born  or  to  be  born  ;  it  includes 
all  the  attributes  of  parental  power,  all  the  rights  which  the  Civil 
Code  or  subsequent  laws  confer  upon  parents  over  the  person  and 
property  of  their  children  ;  it  leaves  subsisting  between  them  only 
a  reciprocal  obligation  to  furnish  support. 

To  whom  go  the  rights  taken  from  the  father  ?  If  the  law  were 
consistent  with  principle,  it  would  be  to  the  mother,  while  alive 
and  having  capacity,  to  whom  these  rights  would  be  transferred. 
The  Law  of  1889  has  not  hesitated  to  introduce  a  very  important 
derogation  upon  the  common  law  in  this  respect.  Under  Article 
9  the  court,  on  declaring  the  forfeiture,  or  at  least  on  arranging  the 
guardianship,  decides  whether,  in  the  child's  interest,  the  mother 
shall  exercise  the  rights  taken  from  the  father.  Considerable 
opposition  was  directed  against  the  extension  of  the  forfeiture  to  the 
mother  when  it  was  the  father  alone  who  was  found  guilty  of  the 
acts  justifying  it.  However,  we  feel  convinced  that  this  rule, 
though  certainly  harsh,  was  the  only  means  in  the  majority  of  cases 
of  insuring  a  real  enforcement  of  the  law.  By  the  mere  fact  that 
they  live  together,  the  mother,  though  admittedly  an  accomplice 
of  the  wrongful  conduct  of  the  father,  would  have  remained  as 
powerless  as  before  to  prevent  it. 

(1)  Voluntary  Guardian.  —  By  excluding,  or  at  least  permitting 
the  exclusion,  of  the  mother  in  the  majority  of  cases,  the  law  had 
to  consider  the  provision  of  a  guardian  for  the  child.  Experience 
had  taught  that  all  prior  laws  which  had  pronounced  a  forfeiture  in 
certain  cases  had  remained  almost  inoperative,  since  they  contained 
only  penal  provisions.  In  doing  away  with  parental  power,  no  care 
had  been  taken  to  indicate  any  person  by  whom  the  child  was  to  be 
raised.  The  authors  of  the  Law  of  1889  profited  by  this  experience. 
.    The  law  set  out  from  the  principle  that  the  guardianship  of  the 

229 


§  43]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

common  law  was  a  mode  of  protection  preferable  to  all  others. 
It  sought,  therefore,  to  apply  it  wherever  possible.  To  simplify 
and  facilitate  its  operation,  the  court  was  assigned  the  duty  of 
naming  the  child's  guardian.  It  did  not  go  so  far  as  to  make 
acceptance  of  the  guardianship  obligatory ;  but,  to  obtain  accep- 
tance the  more  easily,  the  guardian  was  declared  exempt  from  the 
lien  ordinarily  imposed  by  law  in  favor  of  the  ward.  Other  provi- 
sions in  the  same  spirit  facilitated  the  creation  of  an  exceptional 
form  of  guardianship  more  advantageous  to  the  child.  This  was 
known  as  voluntary  guardianship.  It  might  in  fact  happen  that  a 
person  charitably  inclined  would  agree  to  bring  up  and  assume 
charge  of  one  of  these  children  of  misfortune,  and  the  statute  has 
sought  to  encourage  such  acts  of  kindness.  Article  13  provides 
that,  during  the  action  to  forfeit  the  parental  authority,  any  person 
may  request  the  court  to  recognize  him  as  voluntary  guardian,  on 
condition  that  he  obligate  himself  to  support  and  educate  his  ward 
until  the  latter  is  in  a  position  to  gain  a  livelihood. 

The  measures  adopted  to  facilitate  the  appointment  of  a  volun- 
tary guardian  of  this  sort,  or  even  the  usual  guardian,  leave  no 
room,  however,  for  illusion ;  we  can  not  hope  that  as  a  rule  a  person 
ready  to  become  the  child's  guardian  will  be  found.  In  that  case 
the  law  decides  that  the  child  shall  be  placed  under  the  guardian- 
ship of  the  State  Relief.  Bruyere,  who  made  this  proposal  and 
secured  its  adoption  by  the  Commission  of  the  Department  of 
Justice  (before  whom  he  represented  the  administrations  of  State 
Relief)  has  shown  very  strikingly  the  great  practical  benefits  of  this.1 
By  a  simple  reference  to  prior  laws,  "  the  child  was  brought  under 
the  authority  of  a  State  service  organized  throughout  the  nation 
and  possessing  the  resources  necessary  for  its  functions." 

The  field  of  action  of  Public  Aid  was  thus  abruptly  enlarged. 
In  every  Department  of  France  there  were  created,  alongside  that 
branch  of  the  service  which  cared  for  abandoned  children,  new 
functions  covering  the  care  of  neglected  children.  The  two  lines 
of  service  have  the  same  administration  and  direction  ;  the  children 
belonging  to  one  or  the  other  category  are  brought  up  in  the  same 
manner. 

It  was  also  necessary  to  meet  the  expense  of  the  new  service. 
In  principle  it  should  be  supported  by  the  parents.  Their  unfitness 
does  not  free  them  from  their  obligations ;  however,  it  had  to  be 
anticipated  that,  by  indigence  or  ill-will,  their  contribution  would 

1  Bruyere,  "  La  loi  de  1889  et  son  application  "  ;  report  to  the  "  Comite  de 
defense  des  enfants  traduits  en  justice",  p.  30. 

230 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  45 

be  very  considerably  reduced.  Nearly  the  entire  expense  would 
necessarily  be  supported  by  the  treasury  of  the  State  Public  Relief ; 
it  has  been  divided  somewhat  unequally  between  the  State,  the 
Municipalities,  and  the  Departments. 

§  44.  Restoration  of  Parental  Authority.  —  In  spite  of  the 
interest  which  it  might  be  supposed  would  be  felt  to  settle  defini- 
tively the  status  of  these  children,  the  legislator  did  not  desire  to 
subject  the  parents  to  a  forfeiture  that  was  final.  After  some 
hesitation  it  was  settled  that  the  period  of  forfeiture  might  ter- 
minate. 

In  determining  upon  what  conditions  the  parental  authority  may 
be  restored,  we  have  to  distinguish  according  to  the  causes  by 
which  it  was  lost. 

If  the  forfeiture  is  the  consequence  (whether  necessary  or  op- 
tional) of  a  criminal  sentence,  those  who  receive  the  sentence  cannot 
have  their  rights  restored  until  after  rehabilitation  from  the  sen- 
tence. If,  on  the  other  hand,  the  forfeiture  is  pronounced  upon 
facts  involving  no  sentence  against  the  parents,  the  demand  in 
restitution  is  then  not  made  subject  to  any  prior  condition.  We 
need  not  go  into  the  procedure.  As  a  rule  the  law  follows  the 
procedure  of  forfeiture.  If  the  claim  is  granted,  the  father  recovers 
all  the  rights  which  had  been  taken  from  him.  He  is  however 
held  to  reimburse  all  the  expenses  of  the  education  and  support  of 
the  child,  unless  the  court  order  decides  that,  by  reason  of  the 
parents'  poverty,  no  indemnity  will  be  required.  On  the  other 
hand,  if  the  claim  is  rejected,  it  can  be  renewed  only  by  the  mother, 
upon  dissolution  of  the  marriage. 

§  45.  Scope  of  the  Law  of  1889.  —  The  Law  of  1889  did  not  stop 
at  taking  the  parental  authority  from  unfit  parents.  It  desired 
not  only  to  repress  but  also  to  prevent  abuses  of  parental  author- 
ity by  easing  the  task  of  individuals  or  charitable  institutions 
disposed  to  take  over  the  care  of  children  abandoned  or  neglected 
by  their  parents.  Before  this  law  was  passed,  such  establishments 
encountered  a  great  obstacle  in  their  work.  When  they  consented 
to  assume  charge  of  the  education  of  a  child,  if  the  child  was  very 
young  it  was  confided  to  them  willingly  ;  and,  indeed,  parents  often 
sought  aid,  since  at  that  time  the  child  was  merely  a  burden,  an 
expense  that  brought  nothing  in  return.  But  when  it  had  grown 
up,  and  was  strong  enough  to  work,  when  it  might  be  hoped  that 
the  child  could  be  made  the  means  of  a  yet  sadder  exploitation, 
then  the  parents  returned  to  reclaim  their  rights.  Now  parental 
power  is  inalienable ;  no  contract  or  waiver  can  be  a  defence  to  its 

231 


§  45]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

obligations.  Often,  to  defend  themselves  against  these  arguments, 
institutions  which  had  received  children  demanded  that  the  father 
repay  the  cost  of  education.  The  courts  did  indeed  declare  that 
the  indemnity  was  due  and  adjudged  the  father  liable.  But  the 
child  could  not  be  held  as  a  hostage  to  insure  payment.  It  was 
first  necessary  to  yield  the  parents'  claims,  subject  to  the  right 
later  to  enforce  a  judgment,  which  their  insolvency  almost  always 
rendered  vain.  And  in  that  case  all  the  efforts,  all  the  sacrifices 
which  the  charitable  endeavor  had  cost  were  almost  inevitably 
lost ;  the  child,  once  returned  to  its  parents,  was  destined  to  cor- 
ruption or  misery. 

§  46.  Judicial  Dispossession  of  Authority.  —  To  terminate  these 
abuses,  the  general  draft  from  which  the  Law  of  1889  was  taken  did 
not  hesitate  to  adopt  radical  means.  It  conceded  that  a  contract 
between  parents  and  private  individuals  or  charitable  institutions, 
approved  by  a  Justice  of  the  Peace,  might  divest  the  father  and 
mother  of  their  rights  of  parental  authority.  But,  during  this 
preparation  of  the  draft,  the  Council  of  State  showed  itself  strongly 
opposed  to  the  idea.  The  spokesman  for  the  bill  declared  that  the 
validity  of  such  an  agreement  was  repugnant  to  the  notion  of 
parental  authority  as  it  had  always  been  understood  by  French 
law ;  in  remedying  defects  which  no  one  sought  to  deny,  was 
there  not  likelihood  of  giving  rise  to  yet  more  serious  ones,  by 
encouraging  such  evasions,  such  a  commerce  in  children,  such 
methods  as,  under  the  cover  of  charity,  might  at  times  be  merely  a 
base  imposture  ? 

These  objections  led  to  the  adoption  of  a  compromise  draft  which 
aimed  to  give  certain  guarantees  to  the  institutions  that  agree  to 
take  children  under  their  care,  without  however  validating  the 
renunciation  consented  to  by  the  parents.  In  place  of  a  voluntary 
renunciation  was  substituted  a  judicial  dispossession.  In  other 
words,  parents  were  divested  of  their  rights  not  by  agreement, 
but  by  a  judgment.  The  institution  or  individual  who  becomes 
the  child's  guardian  does  not  assume  the  authority  directly;  he 
is  merely  authorized  to  exercise  it  under  the  supervision  of  the 
Public  Aid. 

Judicial  dispossession  may  now  take  place  in  three  sorts  of 
cjiscs  : 

(1)  The  first  is  when  a  father,  mother,  or  guardian,  having 
authority  from  the  family  council,  intrust  a  child  of  less  than  six- 
teen years  to  the  care  of  State  Relief  (refuges,  asylums,  burenus  of 
charity)  or  to  private  charitable  organizations  having  recognized 

232 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  46 

authority,  or  simply  to  private  individuals  possessing  full  civil 
rights.  In  such  cases  dispossession  is  demanded  at  the  joint  in- 
stance of  the  parents  and  of  the  establishment  receiving  the  child. 

(2)  The  second  case  is  where  a  child  of  less  than  sixteen  years  is 
received  directly  and  without  the  parents'  intervention  by  an 
establishment  or  individual  such  as  just  indicated.  Such  a  chari- 
table agency  must,  then,  within  three  daj^s,  file  a  statement  with 
the  mayor  of  the  municipality,  or  in  Paris  with  the  commissary  of 
police,  setting  forth  that  the  child  has  been  received  into  its  house. 
The  mayor,  or  the  commissary  of  police,  forwards  the  statement 
to  the  Prefect  and  notice  of  it  must  be  sent  to  the  child's  parents. 
If,  within  three  months  from  the  date  of  the  statement,  the  father, 
mother,  or  guardian  have  not  re-claimed  the  child,  it  may  be 
considered  to  have  been  abandoned,  and  the  law  authorizes  the 
individual  or  institution  receiving  the  child  to  pray  the  court  that 
the  exercise  of  all  or  part  of  the  parental  authority  be  committed 
to  them. 

The  procedure  is  as  simple  as  possible.  The  court  takes  cogni- 
zance of  the  matter  by  simple  petition,  bearing  the  usual  revenue 
stamp  and  recorded  without  cost.  It  then  proceeds  to  examine 
the  matter  in  chambers,  when  the  public  prosecutor  attends.  If 
the  facts  fail  to  fall  within  the  first  class  of  case,  and  if  the  parents 
are  parties,  they  are  summoned,  as  also  a  representative  of  the  State 
Relief,  and  of  the  institution  consenting  to  take  charge  of  the  child.1 
In  every  case  judgment  is  pronounced  in  public  session.  By  this 
judgment  the  authority  which  belonged  to  parents  is  transferred 
to  the  State  Relief  service,  and  it  is  merely  its  exercise  that  is 
intrusted  to  the  individual  or  institution  receiving  the  child.  It  is 
a  distinction  somewhat  analogous  to  that  (very  early  recognized 
by  the  courts)  between  a  beneficial  and  a  bare  legal  ownership. 
It  is  not  to  be  understood,  however,  that  the  prerogative  assigned 
to  the  State  Relief  possesses  no  practical  value.  Article  17  grants 
it  capacity  to  sue  in  the  child's  name.  It  likewise  results  from 
Article  23  that  the  State,  represented  by  the  Prefect,  exercises  a 
constant  supervision  over  the  children  confided  to  individuals  or 
societies. 

Dispossession  is  not  as  absolute  as  forfeiture  ;  that  is  to  say,  the 
court  does  not  necessarily  take  from  the  parents  the  entirety  of 
their  rights ;  certain  of  them  may  be  retained.  The  rights  of 
which  the  parents  have  been  divested  may  be  restored  to  them, 
but  such  a  restoration  may  only  occur  after  a  judicial  decree. 

1  Art.  18. 
233 


§  47]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

§  47.  Criticism  of  the  Reforms.  —  For  a  just  estimate  of  the 
value  and  importance  of  the  reforms  accomplished  in  1889,  we 
must  guard  against  a  first  impression  which  is  apt  to  be  very 
discouraging.  Almost  all  who  felt  the  necessity  of  this  legis- 
lation for  the  protection  of  minors  and  had  long  and  eagerly 
demanded  it,  and  had  looked  forward  to  a  great  improvement 
through  its  operation,  experienced  an  early  and  bitter  disillusion- 
ment. 

First  of  all  it  had  to  be  admitted  that  the  law  presented  many  and 
serious  defects.  Far  from  having  the  simplicity  of  English  and 
American  statutes  that  have  been  so  efficient  an  instrument  of 
action  for  all  charitable  societies,  and  have  made  possible  the  saving 
of  thousands  of  children,  as  Bruyere  says,  "  without  even  raising 
the  formidable  problem  of  the  forfeiture  of  parental  authority," 
our  law  of  1889  has  proved  at  once  too  timid  and  too  complex. 
Distinctions  that  were  too  numerous,  a  procedure  that  was  too 
formal  and  minute,  provisions  that  were  often  obscure,  —  all  this 
was  more  than  enough  to  discourage  action  ;  for,  when  not  motived 
by  self-interest  of  considerable  magnitude,  there  is  ordinarily  no 
hurry  to  know  or  put  into  practice  new  legislation.  Since  no  such 
motive  was  present  to  insure  application  of  these  legislative  meas- 
ures, appeal  should  have  been  made  to  the  nobler  sentiments  of 
society,  and  care  should  have  been  taken  not  to  ignore  the  assistance 
that  charitable  societies  might  contribute.  On  the  contrary,  no 
right  of  initiative  was  permitted  these  societies ;  all  that  was 
allowed  them  was  to  present  their  complaint  to  the  public  prose- 
cutor, who  became  sole  judge  whether  they  were  well-founded  and 
might  be  brought  before  the  court. 

Another  defect  that  could  not  long  delay  in  becoming  apparent 
was  the  omissions  of  the  law.  Did  it  apply  to  foreigners  ?  It  did 
not  expressly  say  so,  and  as  the  provisions  governing  forfeiture 
of  the  parental  authority  are  not  essentially  penal,  it  was  possible 
to  argue  that  the  legislation  of  1889  was  personal  rather  than 
territorial,  and  so  was  inapplicable  to  foreigners.  Many  text- 
writers  endeavored  to  escape  this  consequence ;  but  the  decisions 
of  the  courts  are  uncertain.  In  this  doubt,  and  rather  than  raise 
difficulties,  the  public  prosecutor  holds  that  he  is  not  bound  to  act. 
Furthermore,  the  law  makes  no  mention  of  illegitimate  children. 
When  it  is  a  question  of  an  illegitimate  child  that  has  been  rec- 
ognized by  its  father,  it  is  at  once  admitted  that  the  law  applies. 
But  even  then  in  practice  obstacles  are  encountered  that  render  its 
operation  very  difficult,  and  these  become  almost  insurmountable 

234 


CHAP.    IV]  CHANGES    IN    FAMILY   LAW  [§  47 

when  the  matter  involves  an  illegitimate  child  who  has  not  been 
recognized  by  its  father. 

But  there  are  further  defects.  When  we  turn,  not  to  the  value 
of  the  law,  but  to  its  application,  to  the  results  obtained,  we  find 
that  it  has  met  with  a  considerable  and  lively  opposition,  and  that 
it  has  begun  to  have  a  very  unfortunate  effect  upon  the  dispensing 
of  justice  by  the  courts. 

There  had  been  a  certain  want  of  accord  between  those  who 
prepared  the  reform  and  the  feelings  of  those  charged  with  its 
application.  The  former,  generally  administrative  functionaries, 
men  of  action,  knew  the  extent  of  the  evil.  They  were  conscious 
that  the  only  means  of  protecting  the  minor,  exploited  by  its 
parents,  abused  and  abandoned,  was  to  take  it  from  them.  On 
the  contrary,  the  courts,  attached  to  tradition,  accustomed  to 
regard  parental  authority  as  a  power  prior  to  and  almost  higher 
than  law,  saw  only  the  radical  and  serious  nature  of  the  action 
they  were  requested  to  take,  without  feeling  all  its  necessity. 
Consequently,  the  courts  showed  themselves  exceedingly  loath  to 
pronounce  a  forfeiture.  For  them  it  was  like  a  last  and  unfortunate 
remedy  from  which  they  struggled  to  escape.  All  the  reports  of  the 
Departmental  inspectors  of  State  Relief  complain  of  this  resistance, 
and  of  its  discouragement  to  good  intentions. 

There  also  arose  the  question  whether  the  courts  had  not  been 
deprived,  by  this  law  which  they  applied  so  timidly,  of  a  jurisdic- 
tion which  prior  decisions  had  always  recognized  in  them,  namely, 
control  and  supervision  over  parental  power.  We  have  already 
indicated  in  what  this  control  consisted.  If  a  father  abused  his 
authority,  unjustifiably  prohibited  all  relationship  between  the 
child  and  its  grandparents,  or  by  his  ill-treatment  endangered  the 
child's  health  or  education,  in  such  case  the  court  was  accustomed 
to  intervene,  and,  without  divesting  the  father  of  his  parental 
power  (since  it  had  no  right  to  do  so)  authorized  a  continuance  of 
the  acts  prohibited  by  the  father,  and  even  confided  the  child  to  a 
third  person.  This  supervision  extended  over  all  the  attributes  of 
the  parental  authority.  The  court  never  went  so  far  as  to  take  all 
from  the  father,  but,  as  Testoud  has  put  it,1  it  "  neutralized  "  those 
exercised  to  the  child's  detriment.  In  reality  this  jurisdiction 
claimed  by  the  courts  was  not  founded  on  any  express  legal  text. 
Reasoning  by  analogy,  the  courts  had  depended  upon  Articles 
302  and  444  of  the  Civil  Code.     The  rule  had  in  its  favor  the  tradi- 

1  "Controle  de  la  puissance  paternelle  par  les  tribunaux",  in  "Revue 
critique  de  legislation"  (1891),  p.  18. 

235 


§  47]  PART   I      READJUSTMENT   OF   LAW  [Chap.    IV 

tion  of  the  provinces  of  customary  law  and  numerous  declarations 
of  purpose  made  in  the  course  of  the  Code's  preparation.  And 
above  all  it  appeared  as  the  logical  consequence  of  the  principle 
that  the  parental  authority  is  conferred  upon  parents,  and  must 
be  exercised  by  them,  solely  in  the  interest  of  the  child. 

The  Law  of  1889  has  unfortunately  resulted  in  again  throwing 
into  doubt  the  correctness  of  this  judge-made  rule.  It  was  argued 
that  the  rule  was  repugnant  to  the  principle  of  the  indivisibility 
of  the  forfeiture  upon  which  the  Law  was  established.  Whether 
obligatory  or  optional,  the  effect  of  the  forfeiture  was  always  the 
same  :  it  operated  upon  all  the  attributes  of  the  parental  authority. 
Now  the  measures  which  the  judge  formerly  considered  himself 
enabled  to  prescribe  by  virtue  of  his  power  of  control,  were  equiv- 
alent to  a  partial  forfeiture  only.  These  measures  were,  therefore, 
henceforth  prohibited.  While  this  argument  appeared  final  to 
some  courts,  others  refused  to  renounce  their  right  of  control.  The 
majority,  however,  pronounced  in  its  favor. 

The  Law  of  1889,  then,  has  disappointed  many  hopes.  In 
certain  respects,  it  has  even  had  disastrous  consequences.  How- 
ever, without  ignoring  any  of  these  causes  for  regret,  we  yet  be- 
lieve that  the  results  have  not  been  inconsiderable. 

An  examination  of  the  data  published  during  the  last  few  years 
enables  us  to  see,  if  not  a  steady  progress,  at  least  (and  especially 
in  certain  localities)  a  fairly  broad  application  of  the  law.  Resist- 
ance gradually  weakens,  and  prejudices  tend  to  disappear.  If 
forfeiture  is  always  difficult  to  obtain  and  seems  too  radical  a 
measure  to  the  courts,  judicial  dispossession  is  frequently  sub- 
stituted, and  it  presents  for  the  child  equal  guarantees  and  may  be 
obtained  far  more  simply.  Of  course,  this  dispossession  of  the 
parental  authority  presupposes  that  the  parents  have  voluntarily 
abdicated  their  rights.  But,  when  an  investigation  proves  that 
they  have  abused  it,  that  they  are  living  off  the  child's  earnings 
from  mendicity  or  prostitution,  when  they  realize  that  they  can  no 
t  enjoy  impunity,  they  ordinarily,  to  avoid  prosecution, 
show  themselves  very  ready  to  consent  to  all  that  is  asked  of  them. 

In  this  way  the  Law  of  1889  (and  this  is  in  our  opinion  its  great- 
est merit)  has  aroused  and  aided  the  initiative  of  philanthropic 
peopl  guarded    "  against    the    base    advantage    taken    of 

them  ",x  societies  devoted  to  the  welfare  of  children  have  de- 
veloped in  usefulness.  They  have  everywhere  become  more  active 
and  efficient.     Taking  the  law  as  it  is,  without  complaining  too 

1  Berthelcmy,  "Rapport  au  Congres  d'assistance  de  Lyon  de  1894",  p.  14. 

236 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  48 

loudly  of  its  inadequacy  and  its  imperfections,  they  have  en- 
deavored to  put  it  to  beneficial  use. 

§  48.  Legislation  in  Other  Countries.  —  It  may  be  said  with 
truth  that  abuses  of  parental  authority  are  repressed  to-day  under 
all  legislations.  In  Europe  there  is  no  country  where  the  State  has 
not  recognized  the  right  to  intervene  in  protection  of  the  mal- 
treated or  neglected  child.  These  protective  measures  multiplied 
especially  toward  the  end  of  the  1800  s.  From  1885  to  1899  there 
was  scarcely  a  single  volume  of  foreign  legislation  that  did  not 
contain  some  enactment  upon  the  subject.  Between  these  laws 
the  differences  are  of  secondary  importance ;  the  points  of  likeness 
are  striking.  This  is  so  not  merely  to  the  extent  that  they  are 
inspired  by  the  same  spirit  and  answer  the  same  need,  but  also  that 
there  is  nothing  original  in  their  authorship.  Each  enactment 
reproduces  in  part  that  of  a  neighboring  country,  and  the  latter 
was  in  most  cases  a  borrowed  product.  It  was  a  case  of  Tarde's 
principle  of  imitation,  —  a  sort  of  propagation  similar  to  that  of 
the  charters  of  the  communes  in  the  1100  s  and  1200  s. 

In  drawing  our  conclusions  broadly,  we  would  call  attention 
only  to  two  points.  The  first  is,  that  these  laws  do  not  every- 
where seem  to  have  the  same  importance  or  the  same  serious 
character.  Certain  legislations  (generally  speaking,  those  least 
subject  to  the  influence  of  the  Roman  Law)  have,  indeed,  always 
regarded  the  parental  power  as  limited.  In  Switzerland,  Germany, 
and  England,  this  power  has  always  been  subject  to  the  permanent 
control  of  certain  public  authorities.  They  are  those  authorities 
to  which  the  law  intrusts  the  supervision  of  guardians.  In  Eng- 
land this  power  of  control  devolved  upon  the  Lord  Chancellor  as 
representative  of  the  King,  who  is  himself  considered  as  the  head 
of  every  family,  the  "  parens  patriae."  It  is  evident  that  under 
these  conditions  the  forfeiture  or  limitation  of  the  parental  power 
becomes  a  very  simple  measure,  to  which  recourse  might  be  had 
without  difficulty  whenever  justified  by  the  child's  interests.  On 
the  other  hand,  in  countries  given  to  regarding  parental  authority 
as  a  power  superior  to  the  law,  forfeiture  seemed  a  much  more 
exceptional  and  radical  measure.  It  is  true  that  this  power  is  no 
longer  (as  at  Rome)  a  mere  right  exercised  by  the  father  in  his 
own  interests ;  it  is  now  a  means  by  which  he  is  enabled  to  fulfil 
his  duties  toward  his  child,  and  that  is  why  it  has  no  longer  any 
reason  to  exist,  when  those  duties  are  neglected.  But  this  conse- 
quence, logical  as  it  may  be,  appeared,  none  the  less,  exceedingly 
serious.     The    laws,    therefore,    which    allowed    forfeiture,    met 

237 


§  48]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

serious  resistance  in  the  countries  of  which  we  are  speaking.  They 
finally  became  necessary,  but  their  enactment  was  slow  and  labori- 
ous, the  last  act  in  a  long  evolution. 

We  would  next  observe  (and  this  should  reassure  those  in  France 
who  find  these  reforms  dangerous  or  at  least  premature),  that  we 
were  not  the  initiators  of  this  legislation.  Other  legal  systems, 
more  Roman  than  our  own,  began  the  work  before  us.  The 
Italian  Civil  Code,  adopted  in  1865  and  in  force  since  1866,  had 
already  taken  up  the  problem  of  remedying  the  abuses  of  parental 
power.  "  If  the  father  and  mother,"  says  Article  233,  "  abuse  the 
parental  authority  by  violating  or  neglecting  their  duties  or  by 
mismanaging  the  child's  estate,  the  court,  upon  the  petition  of 
the  nearest  relative  or  of  the  public  prosecutor,  may  name  a 
guardian  over  the  person  or  property  of  the  child  and  deprive  the 
parent  in  whole  or  in  part  of  the  rents  of  the  property,  or  take  any 
other  precaution  which  it  shall  judge  proper  in  the  child's  inter- 
ests." Similar  provisions  are  to  be  found  in  the  Portuguese  1  and 
the  Spanish  2  Civil  Codes. 

XL    Status  of  Minors:  (3)  Vicious  and  Delinquent 

Children 

§  49.  Increase  of  Juvenile  Crime.  —  It  remains  to  speak  of  a 
third  class  of  children,  the  vicious  and  delinquent,  who  require  to 
be  punished  and  to  be  protected  from  themselves.  The  families 
of  these  children  generally  lack  power  to  control  them,  or  are  even 
their  accomplices ;  hence  the  necessity  of  government  interven- 
tion. We  shall  endeavor  to  sketch  the  nature  and  results  of  this 
intervention. 

The  number  of  children  in  the  class  of  which  we  are  speaking 
had  considerably  increased  during  the  1800  s  and  especially  toward 
the  end  of  that  period.  The  social  causes  of  the  increase  of  ju- 
venile crime  are  numerous,  and  yet  difficult  to  determine.  With- 
out attempting  to  weigh  their  relative  importance,  we  should, 
however,  mention  the  movement  to  the  cities  ;  employment  of  the 
mother  in  the  factory  ;  want  of  supervision  of  the  child  ;  access  to 
stores,  tempting  and  facilitating  the  theft  of  goods  exposed  for 
sale.  The  critical  age  of  children  of  the  lower  classes  is  from  twelve 
to  fifteen  years.  Their  most  habitual  crimes  are  theft  and  vaga- 
bondage.    From  1830  to  1880  the  number  of  children  between 

1  Art.  141.  2  Art.  171. 

238 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  50 

sixteen  and  twenty-one  years  summoned  before  the  correctional l 
and  criminal  courts  increased  from  7,104  to  28,192.  In  1892  it 
rose  to  36,735.  Since  then  a  tendency  to  diminish  is  observable ; 
but  we  should  not  be  misled  by  this,  since  it  is  explainable  in  part 
by  the  greater  indulgence  of  the  public  prosecutor. 

Until  lately  almost  no  attention  was  paid  these  children  until 
after  arrest.  The  indispensable  work  of  prevention  was  hardly 
begun  or  thought  of. 

§  50.  Parental  Correction.  —  In  a  certain  number  of  cases  the 
family  itself  demands  the  right  of  correction.  Along  with  the 
right  over  the  person  of  his  child,  the  law  recognizes  in  the  father 
a  right  of  correction. 

By  correction  is  understood  the  right  of  imprisoning  the  child. 
It  is  a  last  vestige  of  the  parental  power  of  the  early  law.  It  was 
the  subject  of  regulation  by  the  Parlement  of  Paris  of  March  9, 
1673.  The  Civil  Code  was  consciously  inspired  by  that  decree,  but, 
in  regulating  the  right  of  correction,  surrounded  it  with  new  restric- 
tions.    In  its  detailed  provisions  two  principles  may  be  observed  : 

(1)  The  right  of  correction  cannot  be  exercised  without  an  order 
of  court ;  the  order  of  commitment  is  issued  by  the  president  of 
the  court. 

(2)  This  power  is  sometimes  exercised  as  of  right  and  sometimes 
by  way  of  favor.  It  is  of  right  when  the  president  of  the  court 
may  not  refuse  the  warrant  of  arrest ;  it  is  of  favor  when  the  father 
may  merely  pray  for  an  order  of  arrest,  which  the  president  of  the 
court  may  refuse,  if  he  does  not  find  the  allegations  sufficient. 

Correction,  when  of  right,  is  admitted  to  reside  only  in  the 
father.  It  belongs  to  him  only  if  the  child  has  not  completed  his 
fifteenth  year.  Three  cases  must  also  be  mentioned  in  which  the 
father  may  not  act  of  right,  though  the  child  is  less  than  sixteen 
years;  they  are  when  the  father  has  remarried,  when  the  child 
exercises  a  calling  of  its  own,  or  when  it  has  an  estate  of  its  own. 
When  the  mother  exercises  the  parental  authority,  she  may  also 
cause  the  child  to  be  imprisoned,  but,  in  contrast  to  the  father, 
she  may  never  act  except  by  way  of  favor,  and  also  upon  two  condi- 
tions. She  must  not  have  remarried.  In  case  of  a  second  mar- 
riage it  is  the  "  family  council  "  that  exercises  the  power  of  correc- 
tion. And,  secondly,  the  two  nearest  paternal  relatives  of  the 
child  must  join  her  in  her  action.  The  period  of  detention  varies 
according  as  the  order  is  granted  of  right  or  as  a  favor.  It  is 
shortest  when  without  the  protection  of  a  court  order.  When  the 
1  [See  note  to  §52,  infra.  —  Transl.] 
239 


§  50]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

child  is  held  of  right,  it  may  not  exceed  one  month ;  when  detained 
upon  petition,  it  may  cover  six  months.  The  confinement  may 
always  be  shortened  at  the  father's  wish.  By  Article  379  the  law 
gives  him  the  right  to  reconsider  his  action.  But  the  same  article 
adds  that,  if  after  release  the  child  again  falls  into  misconduct,  the 
order  of  detention  may  be  renewed. 

(1 )  Estimate  of  the  Law.  —  It  is  not  enough  merely  to  understand 
what  the  right  of  correction  is  and  how  it  is  regulated  by  the  law ; 
we  cannot  escape  forming  our  own  opinion  concerning  it.  It  has 
long  been  almost  impossible  to  base  any  study  of  this  question 
upon  facts.  The  few  statistics  published  by  the  Department  of 
Justice  and  the  Department  of  the  Interior  made  it  possible  to 
know  at  best  what  were  the  number  of  commitments  issued  each 
year  by  the  presidents  of  the  courts  and  the  number  of  children 
under  detention,  though  it  was  not  always  possible  to  determine 
exactly  the  period  of  the  detentions.  It  might  be  said  that  general 
opinion  augured  ill  for  the  measure.  It  was  granted  that  it  was 
perhaps  a  necessary  means  of  repression  or  intimidation ;  but  it 
was  generally  thought  that  detention,  whether  because  too  short, 
or  because  not  properly  supervised,  had  almost  never  the  effect  of 
mending  the  ways  of  the  child  on  whom  it  was  applied. 

Two  circumstances  have  been  of  unusual  help  to  those  who  have 
been  concerned  with  the  problem,  in  forming  a  more  enlightened 
opinion.  In  the  first  place,  the  "  Societe  Generale  des  Prisons  " 
in  1893  began  an  investigation  into  the  actual  working  of  the  pa- 
rental power  of  correction  in  France  and  in  countries  possessing  a 
similar  system.  In  the  second  place,  at  about  the  same  time 
Beaudoin,  then  President  of  the  Tribunal  of  the  Seine,  reorganized 
in  Paris  the  administration  of  justice  in  the  matter  of  parental 
correction.  He  intrusted  its  direction  to  a  magistrate,  Georges 
Bonjean,  who  had  devoted  all  his  life  to  the  study  of  abandoned 
or  delinquent  children.  In  1894  the  results  of  the  investigation 
were  made  the  subject  of  a  report  to  the  "  Societe  Generale  des 
Prisons  "  by  Henri  Joly.  Shortly  after,  Georges  Bonjean  made  a 
further  report  upon  the  subject  to  the  same  Society.1 

The  spirit  of  the  Society's  report  differed  sensibly  from  that  of 
the  magistrate.     The  practical  recommendations  made  by  each 

1  Cf.  Henri  Joly,  in" Bulletin  de  la  Societe  des  prisons"  (1894),  pp.  2 
et  seq. ;  report  by  Bonjean,  sessions,  Dee.  19,  1894,  ibid.  (1895),  pp.  2  et 
seq. ;  Mar.  20,  1895,  pp.  469  et  seq.  Also  Bonjean,  "Enfants  revoltes  et 
parents  coupables"  (Paris,  1895).  II.  Joly,  "Les  abus  actuels  de  la  loi 
sur  la  correction  paternelle,"  in  "  Reformo  sociale"  (1895),  Vol.  I,  pp. 
561  et  seq. 

240 


Chap.    IV]  CHANGES   IN   FAMILY  LAW  [§  50 

were  not  identical,  but  the  impression  which  they  left  was  equally 
serious  and  the  facts  revealed  were  in  accord.  The  facts  demon- 
strated both  the  odious  abuses  to  which  the  power  of  parental 
correction  was  giving  rise  and  the  ineffectualness  of  the  practice. 
Instead  of  finding,  as  we  should  be  glad  to  do,  the  instance  of  a 
family  sorely  afflicted,  vainly  struggling  against  the  evil  instincts 
of  their  child  and  obliged,  against  its  own  desires,  and  through 
lack  of  power,  to  turn  to  the  law,  the  investigator  generally  found 
parents  who  had  no  sense  of  their  duties  and  who  were  in  a  large 
degree  responsible  for  the  delinquencies  of  their  children.  '  Some- 
times even  the  right  of  correction  served  in  the  parent's  hands 
merely  as  an  instrument  of  vengeance  or  threat,  a  mode  of  "  over- 
coming the  resistance  of  their  children  to  giving  themselves  up  to 
crime,  prostitution,  or  a  scandalous  exploitation." 

(2)  Results.  —  If,  now,  we  ask  what  is  the  result  of  this  system, 
what  becomes  of  the  child  placed  under  imprisonment,  we  again 
find  the  evidence  always  unanimous.  The  child  leaves  worse 
than  he  entered  ;  he  becomes  bitter  and  vindictive. 

That  same  philanthropist  who  had  undertaken  to  reorganize  the 
administration  of  justice  in  Paris  in  the  matter  of  parental  correc- 
tion, set  about  remedying,  so  far  as  the  law  permitted,  the  wretched 
situation  that  was  revealed  to  him.  He  first  adopted  a  rule  to 
make  no  order  of  commitment  without  hearing  both  the  father's 
and  the  child's  side,  and  without  proceeding  to  a  minute  scrutiny 
into  the  life  and  morality  of  each. 

When  all  the  information  was  obtained,  the  magistrate  consid- 
ered whether  the  father's  claim  was  by  way  of  favor  or  of  right. 
In  the  former  case  the  order  could  be  refused,  if  the  complaint  was 
not  justified  or  if  the  charges  alleged  did  not  appear  sufficient  for  so 
rigorous  a  measure.  But,  if  it  was  established  that  the  father  might 
demand  imprisonment  as  of  right,  was  not  the  magistrate's  power 
at  an  end,  meritorious  as  the  child's  situation  might  appear  ?  Not 
so  completely  as  one  might  believe.  The  order  was  not  refused, 
but  deferred.  In  fact,  as  Bon  jean  tells  us,  no  text  of  the  law  bound 
the  president  of  the  court  to  grant  the  order  within  a  fixed  period. 
When  the  parents  were  unfit,  the  record  of  the  case  was  transmitted 
to  the  public  prosecutor,  and  this  might  lead  to  a  proceeding  to 
forfeit  the  parental  power,  before  the  order  was  granted.  Further- 
more, as  Bon  jean  again  observed,  when  the  father's  character 
looked  suspicious,  without  falling  within  the  class  where  forfeiture 
of  parental  authority  could  be  declared,  another  means,  which 
was  almost  always  successful,  could  be  employed.     The  father  was 

241 


§  50]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

found  to  have  failed  to  agree  in  writing  to  pay  all  the  costs  to  which 
the  detention  of  the  child  would  give  rise,  in  accordance  with 
Article  378  of  the  Civil  Code.  As  he  generally  came  to  court  with 
the  notion  that  the  imprisonment  would  mean  an  economy  for 
him  by  relieving  him  of  lus  child,  he  disappeared  as  soon  as  his 
obligation  to  pay  the  expense  was  made  clear  to  him.1 

These  precautions  have  made  it  possible  to  prevent  the  recur- 
rence of  most  of  the  abuses  which  had  been  revealed  and  which 
could  be  committed  with  impunity.2  Do  they  suffice  to  excuse 
further  reform?  Bonjean  did  not  think  so.3  He  considers  that 
the  least  reform  that  can  suffice  is  the  abolition  of  correction 
when  demanded  of  right,  and  the  extension  of  the  child's  right  of 
appeal.4 

Many  would  go  farther  and  abolish,  if  they  could,  the  parental 
right  of  correction  itself.  Its  disappearance  would  leave  no  regret 
with  us.  The  right  is  repugnant  to  our  conception  of  parental 
power,  since  it  has  now  been  demonstrated  that  the  child  can 
derive  no  benefit  from  it.  If  it  were  retained,  the  reform  of  the 
law  would  not  be"  enough ;  the  prisons  must  needs  be  turned 
into  reform  schools,  and  that  would  be  a  miracle  that  the  State 
could  not  perform. 

§  51 .  Minors  under  the  Criminal  Law.  —  It  remains  now  to  speak 
of  minors  who  are  brought  into  the  criminal  courts.  The  law 
governing  the  delinquent  minor  varies  under  the  Penal  Code 
according  as  he  is  over  or  under  sixteen  years  of  age.5  If  over  this 
age,  he  falls  under  the  general  rules  of  the  criminal  law.  His 
responsibility  is  presumed ;  the  punishment  to  which  he  is  sub- 
jected is  that  prescribed  for  the  acts  of  which  he  has  been  found 
guilty,  and  under  like  circumstances,  might  be  pronounced  against 

1  Although  parental  correction  is  a  problem  especially  peculiar  to  Paris, 
we  must  not  forget  that  the  practice  adopted  by  the  Tribunal  of  the  Seine 
is  not  binding  upon  other  courts,  and  that  it  is  far  from  being  followed 
everywhere. 

2  "Bulletin  de  la  Societe  des  prisons"  (1895),  p.  8. 

3  "Bulletin  de  la  Societe  des  prisons"  (1895),  p.  7. 

4  Civil  Code,  Art.  382,  which  provides  for  two  cases  where,  by  excep- 
tion, the  father  may  not  cause  his  child,  under  sixteen  years  of  age,  to  bo 
confined  except  by  way  of  favor,  adds  that  such  child  may  address  a  com- 
plaint to  the  public  prosecutor;  the  latter  shall  bring  it  to  the  attention 
of  the  prosecutor  attached  to  the  court  of  first  instance,  and  shall  make  a 
report  to  the  president  judge  of  the  court,  who  may  modify  or  revoke  the 
order  of  arrest  granted  by  the  president  judge  of  the  court  of  first  instance. 

There  are  in  fact  no  cases  in  practice  of  such  recourse;  the  child  does 
not  even  know  that  he  has  the  right  to  make  the  complaint.  Cf.  Bonjean 
in  "Bulletin  de  la  Societe  des  prisons"  (1895),  pp.  26,  479. 

5  The  Law  of  April  12,  1906,  provides  that  under  criminal  law  one  is  of 
age  at  eighteen  years. 

242 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  52 

any  other  criminal.  On  the  other  hand,  if  the  minor  is  less  than 
sixteen  years,  the  case  is  governed  by  special  rules.  First  of  all, 
the  court's  attention  is  turned  to  the  question  of  the  imputability 
of  the  act ;  on  proof  of  the  commission  of  the  offence,  the  judge, 
before  sentence,  must  inquire  whether  the  minor  has  acted  with 
discernment.  If  this  question  is  answered  affirmatively,  the  child's 
tender  age  of  itself  constitutes  an  extenuating  circumstance,  carry- 
ing with  it  a  mitigation  of  the  penalty.1  If,  on  the  contrary,  it 
appears  to  the  court  that  the  accused  has  acted  without  discern- 
ment, it  must  acquit  him ;  but  in  doing  so,  it  may  decide,  under 
Article  66  of  the  Penal  Code,  that  instead  of  being  restored  to  his 
parents  he  shall  be  sent  to  a  house  of  correction  to  be  educated 
and  held  there  for  a  term  fixed  by  the  judge,  not  to  exceed  the  com- 
pletion of  his  twenty-first  year. 

§  52.  Correctional  Institutions.  —  The  care  of  these  classes  of 
children  has  been  determined  by  the  Law  of  August  5, 1850,  govern- 
ing the  education  and  protection  of  juveniles  subject  to  detention, 
though  it  cannot  be  said  that  all  the  provisions  of  this  law  are 
perfectly  observed  in  practice.  The  institutions  which  receive 
them  are  divided  into  several  classes : 

1.  Houses  of  arrest2  and  of  detention  for  offences  graded  as 
"  correctional  "  3  intended  to  receive  those  held  upon  an  order  of 
arrest  demanded  of  right  by  the  minor's  parent ;  juveniles  under 
sixteen  years  placed  under  preventive  restraint ;  and  finally  (dis- 
tinct from  those  mentioned) ,  juveniles  sentenced  to  a  short  pun- 
ishment not  exceeding  six  months. 

2.  Penitentiary  colonies,  which  are  essentially  institutions  for 
educating  offenders  within  the  correctional  class.  The  children, 
under  Article  1  of  the  Law  of  1850,  must  receive,  during  their 
detention,  a  moral,  religious,  and  technical  education.  Such 
colonies  may  be  either  government  establishments,  administered 
by  the  State,  or  private  institutions,  belonging  to  individuals  and 
managed  by  them  under  the  control  and  supervision  of  the  prison 
administration.     In  these  colonies  are  placed  minors  who  have 

1  Cf.  Penal  Code,  Arts.  67,  69. 

2  [The  house  of  arrest  ("maison  d" arret")  is  a  place  of  detention  at- 
tached to  the  court  of  first  instance  of  each  municipality,  intended  for 
persons  arrested  and  held  for  examination.  Cf.  Code  of  Criminal  Exam- 
ination, Art.  603.  —  Transl.] 

3  [Punishments  under  the  French  Penal  Code  are  classified  into  three 
grades:  (1)  "police",  applied  to  "contraventions";  (2)  "correctional", 
applied  to  the  lighter  crimes  known  as  "clelits";  and  (3)  "afflictive"  or 
infamous,  applied  to  the  graver  offences,  known  as  "crimes."  The  term 
"correctional"  is  thus  used  as  descriptive  of  certain  crimes,  punishments, 
penal  institutions,  procedure,  etc.    Cf.  Penal  Code,  Arts.  1,6-9.  —  Transl.] 

243 


§  52]  PART    I      READJUSTMENT   OF   LAW  [Chap.    IV 

been  held  by  the  court  to  have  acted  without  discernment  and  those 
who  have  been  sentenced  to  terms  of  from  six  months  to  two  years. 

3.  Correctional  colonies,  where  the  children  are  sent  who  offer 
the  least  hope  of  reform ;  those  who  have  been  sentenced  to  more 
than  two  years'  imprisonment ;  or  those  who,  originally  held  in 
other  establishments,  are  deemed  incorrigible. 

We  should  add  that  these  various  classifications  are  applicable 
to  boys  alone.  Girls  under  age,  of  all  classes,  are  held  in  the  same 
penitentiary  institutions.  The  law  has  been  content  to  divide 
such  institution  into  sections  and  establish  distinct  rules  of  treat- 
ment for  each. 

Children  who  have  been  sentenced  or  imprisoned  for  offences 
classed  as  "  correctional  "  may  be  set  at  liberty  before  their  term 
expires,  subject  to  certain  conditions.  The  prison  authorities 
may  restore  them  on  probation  to  their  parents  or  place  them  with 
a  protector.  But  this  is  always  considered  a  favor  which  may  be 
withdrawn  if  their  subsequent  conduct  proves  it  to  have  been 
unjustified.  Those  children  whose  records  are  most  satisfactory 
may  be  authorized,  after  reaching  the  age  of  eighteen,  to  enlist  as 
volunteers  in  the  army. 

By  Article  66  of  the  Criminal  Code,  detention  for  minor  offences 
could  in  no  case  be  prolonged  beyond  the  age  of  twenty.  The 
time  for  final  discharge,  therefore,  preceded  the  date  of  the  child's 
majority  by  at  least  a  year.  The  minor  was  then  restored  to  his 
family,  thus  coming  under  a  control  that  generally  presented  no 
guarantee  and  could  not  fail  to  risk  a  reform  obtained  at  the  price 
of  great  labor.  The  Law  of  1850  realized  the  danger.  By  Article 
19  it  decided  that  minors  who  had  been  acquitted  but  held  with  a 
view  to  prevention,  as  well  as  those  who  would  have  received  a 
sentence  of  more  than  six  months'  imprisonment,  should,  on 
discharge,  be  placed  under  the  protection  of  the  State  Relief  for 
three  years  at  least.  But  this  rule  has  not  been  enforced.  No  ad- 
ministrative ruling  determining  the  mode  and  scope  of  such  care 
was  ever  issued.  The  Law  of  April  12,  1906,  very  reasonably 
extended  the  maximum  duration  of  imprisonment  to  the  date  of 
majority,  that  is  to  say  to  the  twenty-first  year. 

What  has  perhaps  most  seriously  compromised  the  operation  of 
the  Law  of  1850  has  been  the  mistrust  that  these  houses  devoted 
to  the  education  of  correctional  offenders  have  inspired,  and  the 
practice  in  their  regard  followed  by  the  majority  of  the  courts.1 

1  It  is  hard  to  form  an  opinion  of  these  houses  of  correction  ;  the  scenes  of 
violence  that  occur  in  them  from  time  to  time  bring  them  into  a  sad  notoriety. 

244 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  53 

In  spite  of  the  improvements  in  the  administration  of  these  correc- 
tional institutions,  their  reputation  is  not  good.  Not  only  time 
and  patient  effort,  but  also  ample  and  decisive  proof  of  their  bene- 
fits, will  be  necessary  to  offset  evil  recollections  and  to  accustom 
opinion  to  consider  such  institutions  as  genuine  schools  of  reform 
and  training.  This  explains  why  many  courts,  through  mistrust 
of  correctional  detention,  have  almost  systematically  refused  to 
apply  Article  6G  of  the  Penal  Code  and  have  preferred  to  pronounce 
short  correctional  sentences  against  minors  whose  cases  have  been 
brought  before  them.  It  is  very  certain,  however,  that  these 
penalties  are  almost  never  effectual.  After  a  few  weeks  or  days,  the 
prison  opens,  to  restore  the  young  offender  to  the  same  surround- 
ings from  which  he  was  taken.  Nothing  has  been  accomplished 
towards  his  reform.  Rather,  his  spirit  has  been  wounded,  and 
frequently  he  has  been  made  even  more  depraved.  All  protective 
aid  societies  lay  stress,  therefore,  upon  the  grave  defects  of  this 
judicial  practice.  In  Paris  their  object  has  been  attained ;  the 
practice  may  be  considered  as  definitely  abandoned  by  the  Tri- 
bunal of  the  Seine. 

§  53.  Preventive  Measures.  —  Meanwhile  the  need  to  substitute 
reform  for  penal  repression  has  been  more  and  more  felt.  By  direc- 
tion of  the  Department  of  Justice,  the  public  prosecutor  must  send 
cases  involving  delinquent  minors  to  a  preliminary  hearing.  The 
examining  magistrate  must  inform  himself  with  regard  to  the 
minor  and  the  minor's  family.  To  procure  this  information,  a 
special  agent,  in  Paris,  is  placed  at  the  court's  disposal.  In 
populous  centres  committees  have  been  formed  for  the  protection 
of  minors  who  are  haled  before  the  law.  These  committees, 
advised  by  the  public  prosecutor  immediately  upon  the  arrest  of  a 
child,  name  a  representative  to  watch  after  his  interests.  This 
representative  acts  as  an  assistant  to  the  magistrate.  He  informs 
himself  of  all  the  facts  of  the  case  and  searches  for  a  solution  that 
appears  beneficial.  In  Paris,  his  recommendation  is  almost  always 
followed.1     These  efforts  have  been  seconded  in  certain  measure 

The  investigation  of  1899  was  full  of  unpleasant  significance  in  this 
respect.  Important  ameliorations  have  since  been  carried  out,  but  the 
list  of  second  offenders  is  still  large,  although  it  is  not  possible  to  state  it 
exactly.  Discipline  is  instilled  by  threat  of  punishment ;  order  is  kept  by 
veteran  soldiers,  who  are  ill-prepared  for  the  task  of  educators. 

The  number  of  inmates  is  usually  too  high.  Cf.  Schrameck  in  "Revue 
penitentiaire",  and  "Bulletin  de  la  Societe  des  prisons"  (May,  June,  1910), 
pp.  562,  013,  704,  748. 

1  It  may  be  said  that  the  collaboration  between  the  representatives  of 
these  defence  committees  and  the  court  is  preparing,  or  nearly  realizing, 
the  institution  of  special  juvenile  courts.     In  Paris,  since  1906,  all  facts 

245 


§  53]  PART   I      READJUSTMENT  OF  LAW  [Chap.    IV 

by  the  Law  of  April  17,  1898.  As  its  title  shows,  this  law  aims  to 
repress  acts  of  violence  or  cruelty  toward  children.  It  contains 
provisions  intended  to  strengthen  the  preventive  measures  against 
acts  of  this  description  committed  upon  children,  and  (according 
to  a  legislative  practice  not  unusual)  the  occasion  was  seized  to  in- 
sert in  the  law  certain  additional  provisions  which  passed  almost 
unperceived  but  have  become  the  most  important  parts  of  the 
statute.  By  Articles  4  and  5,  whenever  a  crime  (whether  felony 
or  misdemeanor)  is  committed  by  a  child  or  upon  a  child,  the 
examining  judge  may  temporarily  intrust  the  child  to  the  care  of  a 
relative,  or  some  charitable  person  or  institution,  or,  finally,  to  the 
State  Relief. 

The  application  of  this  provision  may  accomplish  great  good. 
It  makes  it  possible  for  the  child  not  to  be  detained  preventively ; 
it  offers  a  new  alternative  to  the  discretionary  action  of  the  courts. 
In  place  of  sentencing  the  child  to  a  short  term,  or  of  sending  it  to  a 
house  of  correction,  or  returning  it  to  its  family,  the  courts  may 
leave  it  with  a  charitable  institution,  or  the  State  Relief,  by  a  very 
simple  proceeding,  lacking  the  serious  consequences  of  a  forfeiture 
of  the  parental  power,  since  it  merely  deprives  the  parents  of  the 
right  over  the  person  of  their  child. 

Unfortunately  the  legislator  did  not  provide  for  the  sure  execu- 
tion of  these  provisions.  To  make  their  application  possible,  the 
judge  must  obtain  the  assistance  of  philanthropic  effort  —  of  a 
protective  aid  society  or  a  charitable  institution.  The  examining 
judge  may  approve  the  measures  taken  for  the  child's  keeping, 
but  he  may  not  impose  them.  Charitable  societies  often  hesitate 
to  assume  the  care  of  this  questionable  class  of  children ;  they 
may  be  harmful  to  other  children  around  them,  and,  conscious  of 
being  under  the  shadow  of  a  prosecution,  they  attempt  to  escape. 
Whether  these  children  may  be  imposed  upon  the  State  Relief 
had  not  been  decided.     Certain  of  the  departments  of  France 

relating  to  minors'  cases  are  given  to  specially  designated  judges  them- 
selves, who  conduct  the  preliminary  hearing ;  since  1907,  all  minors' 
actions  have  been  brought  before  a  single  chamber.  Various  drafts  of 
laws  tending  to  the  creation  of  juvenile  courts  have  been  proposed. 
That  adopted  by  the  Senate  confines  itself  to  leaving  the  preliminary  hear- 
ing of  criminal  actions  involving  minors  of  less  than  thirteen  years  to  a 
referee  designated  each  year  by  the  court  in  chambers  from  among  the 
judges,  former  judges,  barristers,  notaries  or  solicitors  (honorary  or  other- 
wise), and  lastly  from  among  the  members  of  either  sex  of  societies  for  the 
protection  of  discharged  prisoners  or  committees  of  defence  of  children 
haled  before  the  law.  Cf.  Marcel  Kleine,  "Les  tribunaux  pour  enfants 
en  France",  in  "Revue  politique  et  parlementaire "  (May  10,  1911),  p. 
240;  E.  Gar  con,  "Quelques  observations  sur  le  projet  de  loi  relatif  aux 
tribunaux  d'enfants",  ibid.  (October  10,  1911),  p.  63. 

246 


CHAP.    IV]  CHANGES    IN    FAMILY    LAW  [§  53 

refused  to  permit  it.  As  a  general  rule,  the  State  Relief  did  not 
formally  refuse,  but  it  admitted  them  reluctantly.  The  Law  of 
June  27,  1904,  solved  the  difficulty  by  expressly  including,  within 
the  scope  of  the  aid  given  to  minors,  the  care  of  the  child  whose 
keeping  has  been  intrusted  by  the  court  to  State  Relief  according 
to  the  terms  of  Articles  4  and  5  of  the  Law  of  April  17,  1898. 

What  can  be  done  with  these  children?  In  many  cases  it  is 
impossible  to  place  them  in  a  family.  The  Law  of  June  27,  1904, 
decides  that  children  under  the  care  of  the  State  Relief,  who,  being 
wayward  or  defective,  may  not  be  intrusted  to  families,  shall,  upon 
a  decree  of  the  prefect  and  after  a  report  by  the  departmental 
inspector,  be  placed  in  a  trade  school.  But  as  a  matter  of  fact, 
these  schools  do  not  yet  exist ; l  and  the  administration  of  State 
Relief,  after  an  unsuccessful  effort,  has  but  one  resource,  to  secure 
authority  from  the  court  to  confide  these  unmanageable  children 
to  the  penitentiary  administration.2 

Thus,  in  a  roundabout  way,  a  certain  number  of  children,  falling 
within  the  jurisdiction  of  the  State  Relief,  again  take  the  road  to 
the  house  of  correction.  Outside  of  the  possibility  of  lodgment  in 
a  family,  there  is  in  France  only  the  prison.  The  question  of  the 
creation  of  reform  schools  remains  in  the  hands  of  congresses,  com- 
missions, and  societies,  who  have  achieved  no  solution.  It  is 
difficult  to  believe  that  the  State  can  create  and  successfully  run 
such  institutions ;  nor  do  the  results  of  private  initiative  appear 
more  fortunate  or  fertile. 

And  yet  England  presents  a  striking  example.  She  has  organ- 
ized for  the  bringing  up  of  defective,  delinquent,  and  incorrigible 
children  a  series  of  institutions,  truant  schools,  industrial  schools, 
and  reform  schools.  Truant  schools  are  institutions  that  admit 
truants  under  a  strict  regime,  for  a  period  that  is  generally 
short.  The  industrial  schools  receive  incorrigible  children,  or 
children  who  have  been  neglected  or  abused,  but  have  not  received 
any  criminal  sentence.     Reform  schools  are  intended  for  delin- 

1  Cf.  Eugene  Prevost,  "Les  ecoles  professionelles  des  enfants  assistes  et 
l'application  de  la  loi  du  27  juin  1904." 

2  Law,  June  27,  1904,  Art.  2.  —  Sometimes,  especially  in  Paris,  the 
courts,  on  sentencing  a  child  to  a  house  of  correction,  permit  him  to  be 
provisionally  intrusted  to  a  protective  or  aid  society.  This  is  the  system 
of  "probation."  If  the  child  behaves  well,  the  institution  keeps  him  ;  if 
he  is  unmanageable  or  tries  to  escape,  it  returns  him  to  the  penal  adminis- 
tration. The  threat  alone,  in  many  cases,  will  be  sufficient  to  restrain 
the  child.  A  bill  already  voted  by  the  Senate  gives  recognition  to  this 
practice  of  probation,  the  legality  of  which,  in  the  present  state  of  the 
law,  seems  doubtful.  Upon  the  Senate  bill,  cf.  Gargon  in  "Revue  politique 
et  parlementaire "  (October  10,  1911),  p.  69. 

247 


§  53]  PART    I      READJUSTMENT    OF   LAW  [Chap.    IV 

quent  children  or  those  who  have  been  taken  from  the  control  of 
their  families  by  judicial  decree.  To  these  different  schools  are 
to  be  added  many  private  philanthropic  works,  such  as  that  of 
Dr.  Bernardo,  who  in  twenty-eight  years  has  sent  to  the  colonies 
6,571  children,  of  whom  6,128  have  gone  to  Canada.  Almost 
all  these  young  people  succeed.  They  are  sent  only  after  they 
have  been  physically  strengthened,  morally  fortified,  and 
apprenticed  to  a  trade. 


248 


Part  II 

THE  MOVEMENT  FOR   THE  NATIONAL  CODIFI- 
CATION  OF   LAW 


Chapter  V.  The  Influence  of  the  Napoleonic  Codification 
in  Other  Countries. 

Chapter  VI.  The  French  Code  of  1804,  the  Austrian  Code 
of  1811,  the  German  Code  of  1900,  and  the  Swiss  Code 
of  1907 ;  a  Contrast  of  their  Spirit  and  Influence. 

Chapter  VII.  A  Century's  Progress  in  Re-Shaping  the 
Law;  the  German  and  the  Swiss  Codes,  compared 
with  the  French  Code. 

Chapter  VIII.    The  Italian  Civil  Code  of  1866. 

Chapter  IX.    The  Commercial  Codes. 


Chap.  V] 


INFLUENCE  OF  FRENCH  CODES 


[§1 


Chapter  V 

THE  INFLUENCE  OF  THE  NAPOLEONIC  CODIFICATION 
IN  OTHER  COUNTRIES 

By  Alexander  Alvarez1 


§  1.  Influence  upon  Other  Conti- 
tinental  and  Extra-Euro- 
pean Legislation. 

§  2.     Influence    upon    the    Anglo- 


American  System. 
§  3.     Influence  upon  International 
Law. 


§  1.  Influence  upon  Other  Continental  and  Extra- European 
Legislation.  —  What  influence  did  the  Napoleonic  Codification 
exercise  upon  the  nations  in  existence  at  the  period  of  the  Code 
or  that  have  sprung  into  being  since?  The  question  has  not  yet 
been  treated,  we  think,  with  the  fulness  that  it  deserves  or  in  its 
true  aspects.  Without  assuming  here  to  give  a  complete  exposition 
of  this  subject,  we  may  indicate  its  general  lines. 

Two  periods  are  distinguishable  :  the  one  during  which  Napoleon 
imposed  the  Code  upon  conquered  nations ;  the  other,  and  by  far 
the  more  important,  during  which  the  action  of  the  Code  was  due 
merely  to  is  own  natural  force  of  expansion. 

(1)  Countries  upon  which  the  Code  teas  Imposed.  —  During  the 
first  period,  the  Code  followed  the  fortunes  of  Napoleon's  armies. 
He  set  it  up  to  govern  the  peoples  whom  he  conquered,  without 
concern  whether  the  countries  where  he  introduced  it  were  really 
ripe  for  the  codification.  But  the  emperor  had  absolute  faith  in  the 
excellence  of  his  legislative  work,  and  his  Code  followed  the  for- 
tunes of  his  arms  and  spread  with  the  empire  itself. 

Among  the  countries  where  the  Civil  Code  was  introduced 
almost  from  its  appearance  we  must  distinguish : 

(a)  Those  where  it  came  into  force  from  the  date  of  its  promulga- 
tion, having  been  annexed  to  France  at  the  time  of  the  peace  of 
Amiens   (1802).     Such  were  Belgium,  Luxemburg,  the  Palatine 


1  [This  Chapter  forms  the  conclusion  (pp.  47-65)  of  the  passage,  appear- 
ing as  Chapter  I  of  the  present  work,  taken  from  the  same  author's  "Une 
nouvelle  conception  des  etudes  juridiques  et  de  la  codification  du  droit 
civil."  —  Ed.] 

251 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    V 

States,  Rhenish  Prussia,  and  Hesse  Darmstadt,  all  of  which  were 
situated  on  the  left  bank  of  the  Rhine ;  and  also  Geneva,  Savoy, 
Piedmont,  and  the  Duchies  of  Parma  and  Piacenza. 

(b)  Those  countries  made  subject  to  the  Code  as  a  result  of  the 
Napoleonic  conquests.  These  were  Italy,1  Holland,2  the  Hanseatic 
Cities,3  and  the  Grand-Duchy  of  Berg.4 

(c)  The  countries  which  voluntarily  adopted  the  French  Code. 
Such  were  the  Kingdom  of  Westphalia,  on  January  1,  1808; 
Hanover,  by  virtue  of  its  union  with  Westphalia  in  1810 ;  the  Grand- 
Duchies  of  Baden,  Frankfort,  and  Nassau  ;  certain  Swiss  Cantons ; 
the  free  city  of  Danzig ;  the  Grand-Duchy  of  Warsaw  ;  the  Illyrian 
Provinces ;  the  Kingdom  of  Illyria  from  1816 ;  the  Kingdom  of 
Naples  from  January  1,  1808.5 

The  fall  of  the  empire  reacted  upon  the  history  of  the  countries 
where  the  Code  had  been  imposed.  Many,  including  the  Italian 
States  (except  Naples),  repudiated  it ;  some  retained  it  and  modi- 
fied it ;  still  others  preserved  it  in  whole.6 

(2)  Countries  to  which  the  Code  Spread.  —  The  second  period  was 
that  during  which  the  French  Code  manifested  its  force  of  expan- 
sion.    Like  the  legislation  of  Rome,  its  influence  was  vast. 

From  the  moment  of  the  adoption  of  the  Code,  the  attention  of 
the  nations  was  attracted  to  the  idea  of  codification,  and  it  exer- 
cised a  greater  or  less  influence  upon  all  of  them.  Of  these  we 
must  consider  (excepting  always  the  Anglo-Saxon  countries, 
which  were  frankly  hostile  to  any  idea  of  codification  and  were 
content  with  their  ancient  system  of  law)  two  groups  of  countries, 
in  which,  however,  the  general  observations  made  with  regard  to 
each  of  them  are  not  equally  true  of  all  the  countries  composing 
the  group. 

(a)  The  Latin  group.  On  the  appearance  of  the  Civil  Code, 
these  found  a  standard  by  which  to  judge  of  the  decrepitude  of 
their  own  institutions.  They  accepted,  therefore,  as  articles  of 
faith,  not  only  the  idea  of  codification,  but  the  bases  and  governing 
ideas  inspiring  it.  These  countries  reproduced  the  articles  of  the 
Code  with  but  slight  differences. 

(b)  The  group  of  Germanic  and  Slavic  countries.  These  showed 
but  tepid  zeal  for  codification.  In  the  first  three  quarters  of  the 
1800  s,  they  had  not  all  adopted  codes ;  even  the  few  that  did  were 

1  Decree  of  March  30,  1806.  3  Senatus-Consult,  Dec.  13,  1810. 

2  Decree  of  Oct.  18,  1810.  4  Decree  of  Dec.  17,  1811. 

B  Planiol,  "Traits  616mentaire  de  droit  eivil",  Vol.  I,  §128;  also 
(Hn.sxon,  "  Klrmcnts  <lu  droit  francais",  Vol.  I,  §  15. 

6  Planiol,  op,  </'/.,  Vol.  1,  §  129;   Glasson,  op.  cit.,  Vol.  I,  §  15. 

252 


CHAP.  V]         INFLUENCE  OF  FRENCH  CODES  [§  1 

far  from  accepting  all  the  principles  of  the  Napoleonic  codification. 
On  the  contrary,  they  drew  generally  upon  their  own  traditions, 
giving  heed,  nevertheless,  to  the  changes  which  their  social  condi- 
tion had  undergone.  For  this  reason  they  took  rather  as  models 
the  codes  which  had  been  framed  by  peoples  of  the  same  race 
as  themselves  at  a  period  prior  or  contemporary  to  the  French 
Code.  This  was  notably  true  of  the  Prussian  and  Austrian  Codes. 
Now  that  the  German  Civil  Code  and  the  Swiss  Civil  Code  1  have 
come  into  existence,  we  may  say  that  all  the  States  of  this  group 
have  been  won  over  to  codification,  but  without  adopting  as  such 
the  underlying  principles  or  governing  ideas  of  the  French  Civil 
Code. 

(3)  Codification  and  the  Revolutionary  Principles. — As  yet  no  one 
has  fully  set  forth  the  reasons  why  all  countries  did  not  rally  to  the 
French  system  of  codification.  As  a  rule  it  has  been  deemed 
enough  to  point  out  that  codification  was  born  of  the  Revolution, 
that  it  spread  with  the  Revolutionary  principles,  and  that  it  was 
repudiated  only  by  jurally  backward  countries. 

This  view  is  by  no  means  correct.  England  from  the  outset  re- 
lentlessly opposed  the  principles  of  the  Revolution,  being  con- 
servative and  naturally  proud  of  her  own  institutions.2  But  her 
hostility  to  the  Revolution  and  her  conservatism  are  nevertheless 
not  enough  to  explain  why  that  country,  which  manifests  her  love 
of  liberty  both  in  her  institutions  and  her  traditions,  repudiated 
the  idea  of  codification. 

To  judge  how  mistaken  is  the  idea  that  the  countries  which  re- 
jected adopt  codification  were  inspired  thereto  by  antipathy  to  the 
French  Revolution,  we  need  only  observe  that  the  United  States 
has  little  or  no  codified  private  law,  but  still  lives  under  the  English 
common  law.  And  yet  the  United  States  accepted  the  ideas  of  the 
Revolution,  indeed  inspired  them  in  part,  and,  upon  its  independ- 
ence, adopted  an  entirely  new  political  form,  quite  distinct  from 
that  of  England.  Moreover  there  were  countries  (like  Austria  and 
certain  German  States)  where  the  principles  of  the  French  Revolu- 
tion had  not  yet  penetrated  even  when  those  States  did  become 
adherents  to  the  system  of  codification.  The  spread  of  codifica- 
tion was,  therefore,  independent  of  the  destiny  which  befell  the 
ideals  of  the  Revolution.  It  is  rather  explainable  by  the  legal 
history  of  each  country  and  by  the  extent  of  the  intellectual  and 

1  [The  Swiss  draft  was  adopted  Dee.  10,  1907,  and  went  into  force 
Jan.  1,  1912.     TrAxNsl.] 

2  Sorel,  "L'Europe  et  la  Revolution  francaise",  Vol.  I,  pp.  355-359. 

253 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    V 

moral  ascendency  exercised  by  France  upon  certain  countries, 
especially  those  of  Latin  blood. 

Let  us  turn,  then,  to  the  two  groups  of  countries  which  did  of 
their  own  volition  codify  their  law. 

The  group  of  Latin  countries  accepted  codification  as  readily  as 
they  did,  because  codes  were  not  a  novelty  to  them.  There 
existed  among  them  collections  of  laws  and  customs,  besides  the 
Justinian  Codification.  Jurists,  judges,  and  litigants  were  habitu- 
ated to  legal  texts.  It  was  not  surprising,  therefore,  that  the 
simplicity,  elegance,  method,  and  logic  of  French  codification  fas- 
cinated them  and  that  in  espousing  codification  they  also  quite 
naturally  accepted  the  fundamental  principles  and  governing 
ideas  behind  it.1 

Wherever  we  find  the  detailed  and  codified  regulation  of  jural 
institutions  was  reproduced  (save  for  a  few  changes)  by  the  Latin 
countries,  it  is  legal  history  that  offers  an  explanation.  Had  not 
the  principal  institutions  of  the  law  received  nearly  the  same 
development  in  all  these  countries?  The  regulations  embodied 
in  the  French  Code  were  consequently  found  to  satisfy  very  easily 
the  needs  of  the  Latin  countries,  and  consequently  also  the  presence 

1  The  Latin-American  Republics  have  since  independence  felt  the  need 
of  codes  distinct  from  that  of  their  mother  country.  One  of  the  best  and 
at  the  same  time  one  of  the  oldest  (promulgated  1855,  in  force  1858)  is  the 
Chilean  Code.  Like  all  the  codes  of  the  Latin  countries  it  follows  very 
closely  the  French  Code.  It  has  drawn,  however,  from  the  various  laws 
in  force  in  Europe  and  America  whether  codified  or  not,  and  even  from 
English  and  American  law.  Notably,  in  private  international  law,  the 
theory  of  territoriality,  — which  is  that  of  the  two  last-named  countries,  — 
was  preferred  to  the  French  theory  of  nationality.  The  preparatory 
drafts,  which  indicate  their  origin  in  the  margin  of  each  Article,  prove 
this  diversity  of  inspiration.  The  Chilean  Code  contains,  besides,  certain 
original  institutions  which  we  find  again  elsewhere  in  later  codes.  The 
reason  why  Chile  possessed  so  eclectic  and  advanced  a  code  for  the  period 
is  that  (like  all  Latin-American  countries)  she  was  born  to  political  life  in  a 
day,  and  her  legal  institutions  were  without  deep  root  in  the  past.  Con- 
sequently the  Chilean  Code  has  served  as  a  model  for  almost  all  the  codes 
of  Latin-America,  some  of  which  have  even  reproduced  it  almost  word  for 
word. 

Among  the  institutions,  embodied  in  it,  which  were  new  in  1S55,  may 
be  menl  ioned : 

a.  The  duty  imposed  upon  courts  of  justice  to  render  an  annual  report 
in  March  to  the  President  of  the  Republic  upon  the  difficulties  of  inter- 
pret I  ion  (ir  upon  I  lie  deficiencies  noted  (Art.  5).  Although  this  provision 
has  unl'ort  unalely  not  been  observed,  it  was  proof  of  the  desire  of  t  he  authors 
of  t  he  Code  not  to  crystallize  the  law,  hut  io  keep  it  constantly  abreast  of 
prad  ical  needs,  and  to  associate  in  this  wise  labor  hot  h  judge  and  legislator. 

b.  Precision  of  the  rules  of  interpretation  governing  judges,  depriving 
them  (wrongfully  in  our  opinion)  of  all  discretion  in  this  respect. 

c.  Introduction  of  very  complete  rules  of  private  international  law, 
adopting  the  theory  of  territoriality. 

'/.  Assimilation  of  the  Chilean  and  the  foreigner  with  regard  to  civil 
rights. 

254 


CHAP.  V]         INFLUENCE  OF  FRENCH  CODES  [§  1 

of  the  Civil  Code  caused  the  antiquated  character  of  the  institu- 
tions of  these  countries  to  be  the  more  apparent ;  so  that  they  set 
themselves  to  the  task  of  codification,  taking  the  French  Code  as 
their  guide. 

The  intellectual  and  moral  ascendency  of  France  also  operated 
effectively  towards  the  same  end.  We  have  already  noted  that 
private  law  alone  was  codified  in  France,  administrative  law  having 
as  yet  no  tradition.  Now,  by  the  time  the  Latin  countries  under- 
took their  task  of  codification,  they  already  possessed  a  formal 
administrative  law.  Nevertheless,  like  France,  they  codified 
only  their  private  law.  If  they  did  not  do  likewise  for  their 
administrative  law,  it  was  largely  because  they  had  no  French 
Code  to  guide  them  in  the  matter. 

The  Germanic  and  Slavic  countries,  constituting  our  second 
group,  had  other  reasons  for  not  taking  up  codification.  Codifica- 
tion came  about  ultimately  in  spite  of  the  strength  of  the  historical 
school,  which,  as  we  know,  grew  out  of  a  reaction  against  a  demand 
for  codification,  and  impeded  the  work  of  unifying  German  law.1 

e.  Granting  of  legal  personality  to  civil  partnerships  and  the  right  of 
other  associations,  when  recognized  as  lawful,  to  obtain  legal  personality 
by  governmental  concession. 

/.  Recognition  of  legal  personality  in  every  one  born  alive,  though  con- 
tinuance of  life  is  impossible. 

g.  Fixing  majority  at  twenty-five  years,  a  person  of  twenty-one  years 
being  permitted  to  acquire  an  almost  complete  capacity  through  habita- 
tion by  age. 

h.  The  almost  complete  assimilation  of  the  rights  of  the  legitimate  and 
illegitimate  child. 

i.  Publicity  as  to  land  transfers  and  rights  "in  rem"  by  the  creation 
of  a  recording  system. 

j.  Limitation  of  the  right  of  inheritance  to  relations  of  the  sixth  degree  ; 
granting  the  right  of  inheritance  to  the  surviving  consort,  immediately 
in  line  after  legitimate  descendants  and  "pari  passu"  with  the  nearest 
legitimate  ancestors  and  natural  children. 

k.  The  "mejora"  or  "enlarged  reserve",  amounting  to  one-fourth  of 
the  estate  of  the  decedent  and  added  to  the  reserve,  distributable  by  the 
will  of  the  testator  only  in  favor  of  his  legal  descendants. 

I.  Annuity  for  maintenance,  reserved  by  law  to  the  surviving  and 
needy  consort. 

m.  Adoption  of  the  French  "legal  community"  as  the  common  law 
property  rule  of  matrimonial  estates,  combined  with  that  of  community 
of  acquests  ;  the  necessity  laid  upon  the  husband  of  receiving  the  consent 
of  his  wife  and  the  confirmation  of  a  court  to  alienate  lawfully  immovables 
from  his  separate  estate.  The  consequent  suppression  of  contractual 
marital  arrangements,  that  provided  by  law  sufficing. 

a.  Abandonment  of  the  lien  created  by  law  in  favor  of  the  wife  over 
the  property  of  the  husband  to  secure  the  restitution  of  her  marriage 
portion,  and  the  unity  of  regimes  governing  her  marriage  portion  and  her 
separate  estate. 

o.  Exclusion  of  the  "benefieium  competentiae"  (or  exemption  of  a 
subsistence)  to  co-partners,  relations  and  "bona  fide"  debtors. 

1  Upon  the  different  codes  prior  to  that  of  1900  in  the  various  German 
States,  and  the  attempts  at  codification  which  preceded  it,  as  wrell  as  the 

255 


§  1]  PART    II      NATIONAL    CODIFICATION  [Chap.    V 

But  when  codification  did  come,  these  countries  did  not  follow  the 
principles  and  institutions  of  the  French  Code,  because  they  already 
possessed  their  own  institutions,  which  their  history  had  stamped 
with  a  character  of  their  own.  Being  different  from  the  cor- 
responding institutions  of  France,  they  required  to  be  differently 
regulated.  Historical  law  was,  therefore,  taken  into  consideration 
by  their  Codes,  and  it  was  adapted  to  the  new  conditions  of  their 
social  life.  Nevertheless,  the  French  Code,  by  rejuvenating  the 
institutions  which  it  regulated,  had  rendered  them  more  like  those 
of  these  countries,  so  that  it  became  possible  for  them  to  borrow 
from  it  certain  principles  here  and  there.1  And  finally,  though  a 
few  Germanic  and  Slavic  countries  did  adopt  the  French  Code  in 
its  entirety,  it  was  because  they  had  no  truly  national  legal  history. 

§  2.  Influence  upon  the  Anglo-American  System.  —  We  have 
noted  above  that  though  Anglo-Saxon  countries  repudiated  codi- 
fication, it  was  not  because  of  their  hostility  to  the  ideas  of  the 
Revolution.  Recognition  of  the  traditionalism  of  the  English 
character  does  not,  moreover,  suffice  to  explain  this,  for  the  ques- 
tion is  precisely  to  discover  the  reason  that  led  the  English  to 
prefer  their  system  of  customary  law.  Quite  contrary  to  what  is 
sometimes  asserted,  they  are  in  no  wise  believers  in  any  absolute 
excellence  of  their  system ;  they  very  clearly  recognize  its  disad- 
vantages and  have  tried  more  than  once  to  remedy  them  by  re- 
course to  codification. 

The  truth  is  that,  since  codification  had  found  no  prior  place  in 
their  history,  the  English  were  not  fascinated  by  the  idea  and  could 
criticize  it  freely.  They  reached  this  conclusion :  codification, 
upon  the  postulates  of  the  French  Code,  possesses  as  many  dis- 
advantages as  their  own  legal  system ;  it  would  be  necessary  to 
construct  upon  other  bases,  and  those  would  offer  well-nigh  in- 
surmountable difficulties  of  execution. 

Only  after  understanding  the  postulates  upon  which  English 
law  rests  and  its  precise  function,  can  we  compare  the  English 
system  with  that  of  countries  of  codification  and  pronounce  upon 
their  relative  merits.  If  we  turn  to  the  sources  of  English  law, 
we  find  that  the  philosophical  doctrines  of  the  1700  s,  which  had 

preparatory  work  of  drafting,  cf.  Saleilles,  "Introduction  a  l'etude  du  droit 
civil  allemand",  §§  II  and  til. 

1  The  influence  of  French  law  upon  German  law  also  manifested  itself 
in  the  administrative  field,  where  certain  institutions  were  modelled  upon 
those  of  France,  and  where  others,  by  reason  of  the  source  of  their  inspira- 
tion, became  analogous  to  those  of  French  law.  Cf.  Mayer,  "  Le  droit 
administratif  allemand"  (French  ed.,  1903),  Vol.  I,  p.  14. 

256 


ClIAP.    V]  INFLUENCE    OF    FRENCH    CODES  [§  2 

such  great  success  in  France  and  so  dominating  an  influence  upon 
the  law  of  that  country,  enjoyed  no  credit  in  England,  which  was, 
nevertheless,  their  country  of  origin.  This  philosophy,  which 
aimed  to  destroy  all  in  order  to  remake  all,  came  and  went.1  Con- 
sequently, not  only  was  no  contempt  felt  for  the  ancient  sources 
of  law,  particularly  custom,  but  in  fact  from  such  sources  still  flow 
the  public  and  private  law  of  England.  In  the  field  of  public  law 
we  find  that  the  Constitution  has  not  been  wholly  set  down  in 
writing,  but  remains  customary ;  the  basis  of  private  law  is  the 
common  law,  or  the  ancient  general  custom,  along  with  equity, 
the  precise  origin  and  development  of  which  has  given  rise  to 
much  controversy. 

The  distinctive  source  of  their  law  is  in  reality  the  decided  case ; 
for  the  magistrate  alone  has  full  power  to  determine  the  existence 
of  the  rules  of  common  law  and  equity.  So  soon  as  a  case  is  de- 
cided, it  constitutes  a  precedent,  serving  as  proof  of  a  rule  of  law 
and  fixing  it.  Whenever  an  analogous  case  presents  itself,  the 
judge  is  bound  to  conform  to  the  prior  decisions  which  evidence 
the  existence  of  the  common  law  or  equity  rule. 

English  law  is,  therefore,  in  reality  less  a  body  of  custom  than  a 
collection  of  cases.  The  judges  appear  to  have  only  a  restricted 
function  ;  but  that  is  by  no  means  the  fact,  as  we  shall  presently  see. 

The  decided  case  is  the  principal  source  of  their  law ;  but  it  is 
not  the  sole  source.  Alongside  of  it  is  statutory  law,  which  covers 
only  special  subjects  where  the  common  law  has  been  deemed  too 
antiquated.  Legislation  therefore  merely  supplements  the  com- 
mon law.  When  the  legislator  intervenes,  his  work,  inspired  solely 
by  practical  requirements,  possesses  none  of  those  traits  attaching 
to  it  in  countries  of  codification.  The  English  have  a  correct 
appreciation  of  man's  inability  to  make  time  and  space  subser- 
vient to  legal  texts.  They,  therefore,  systematically  avoid  enact- 
ing laws  of  a  general  character  or  such  as  regulate  an  entire  subject 
in  a  final  way.  Legislative  rules  are  limited  to  determinate 
groups  of  facts.  Laws  are  passed  upon  specified  points;  the 
statutes  are  later  generalized  or  reformed,  and  this  is  what  gives 
to  English  laws  their  specific  character.  Not  only  do  they  avoid 
embracing  entire  groups  of  matters,  but  their  provisions  are  not 
inspired  by  that  excessive  spirit  of  logic  which  is  the  striking  fea- 
ture of  the  law  of  countries  of  codification.  The  English  law- 
maker does  not  inquire  whether  the  law  he  is  drafting  is  in  har- 

1  Taine,  "Origines  de  la  France  eontemporaine.     L'ancien  regime", 
bk.  IV,  chap.  I. 

257 


§  2]  PART   II      NATIONAL    CODIFICATION  [Chap.    V 

mony  with  the  bulk  of  the  law  of  his  country ;  he  does  not  try  to 
strengthen  his  law  by  bringing  it  under  the  authority  of  some 
general  principle,  from  which  his  work  may  appear  as  a  simple 
logical  deduction.  The  English  Parliament  adopts  without  em- 
barrassment some  one  corollary  of  a  general  truth,  while  feeling 
free  to  reject  others  in  spite  of  the  demands  of  logic,  which  require 
that  all  possible  consequences  be  drawn  from  an  admitted  truth. 
Nor  does  it  claim  to  pronounce  final  laws,  not  unalterable  in  the 
future.  On  the  contrary,  it  often  passes  temporary  or  local  laws, 
applicable  for  a  given  period  or  within  a  limited  region ;  the  latter 
are  called  local  acts.  Certain  laws  are  optional  in  their  operation, 
that  is,  one  is  free  to  place  oneself  subject  to  them  or  not.  Other 
laws  are  put  forth  as  experimental.1 

Since  legislation  is  considered  as  having  but  a  temporary  charac- 
ter, it  does  not  inspire  in  jurist,  judge,  or  litigant  the  same  super- 
stitious respect  as  in  the  countries  of  codification.  Consequently, 
though  in  pure  theory  all  laws  are  equally  obligatory,  the  moral 
authority  of  a  statute  is  taken  into  consideration  by  the  legislator 
and  judge.  An  unsatisfactory  law  is  often  twisted  or  violated ; 
the  legislator  does  not  dream  of  protesting.  Rather  than  stiffen 
the  law's  penalty,  he  seeks  the  causes  of  the  opposition  which  the 
law  has  met  and  remedies  them.  For  it  is  not  enough  for  him  that 
a  statute  is  of  itself  sound ;  he  desires  further  that  its  results  be 
good  and  that  it  should  not  clash  with  lawful  interests.  The 
judge,  in  turn,  sanctions  practices  by  which  a  bad  law  is  evaded  or 
rendered  inapplicable.  In  this  way  many  laws  have  fallen  into 
disuse.  Not  only  do  English  courts  regard  infractions  by  the 
public  of  bad  laws  as  justifiable,  but  they  even  do  not  hesitate  to 
criticize  certain  laws  from  the  bench  in  the  very  presence  of  liti- 
gants.2 

English  laws,  drafted,  as  we  thus  appreciate,  to  answer  practical 
needs,  have  in  this  respect  a  character  quite  different  from  that 
of  the  laws  of  the  countries  of  codification.  Contrary  to  what 
has  taken  place  there,  English  private  law  is  not  imprisoned  within 
precise  formulae ;  it  does  not  constitute  a  systematic  whole, 
since  it  is  not  as  elsewhere  the  exclusive  work  of  legislation.  It  is 
not  always  easy,  indeed,  to  know  exactly  what  the  law  is.  But 
for  this  very  reason  it  remains  attached  to  that  social  environment 
to  which  its  rules  apply.     However  great  the  respect  of  the  judge 

1  Upon  the  character  of  English  statutes,  cf.  Bouttmj,  "Essai  d'une 
psychologic  politique  du  peuple  anglais  au  XIXe  siecle",  pp.  238  et  seq. 

2  Id.,  pp.  254-259. 

258 


Chap.  V]         INFLUENCE  OF  FRENCH  CODES  [§  2 

for  decided  cases,  the  law  develops  in  harmony  with  the  needs  of 
the  sphere  where  it  operates.  In  this  way  the  law  insensibly  makes 
place  for  the  new  jural  relationships  resulting  from  social  evolu- 
tion. It  is,  therefore,  never  in  conflict  with  justice.  It  is  not 
inspired  by  fixed  principles,  as  is  the  private  law  of  countries  of 
codification,  where  the  legislator  regulates  all  legal  relations,  but 
rather  by  social  interest  and  equity.  It  is  not  possible,  therefore,  to 
abstract  the  essence  of  English  law,  as  we  have  done  for  French 
law,  by  summarizing  its  institutions ;  the  body  of  the  English 
law  refuses  to  be  formulated  with  precision. 

Thus,  when  the  question  of  codification  presented  itself  to  their 
minds,  the  English  conceived  it  very  differently  from  the  French 
legislator  and  those  who  have  been  inspired  by  his  work.  While 
not  losing  sight  of  the  nature  and  history  of  their  law,  they  did  not 
look  upon  codification  as  a  body  of  precepts  drawn  up  by  the  legis- 
lator with  an  idea  of  innovation.  In  their  eyes  codification  was  a 
sort  of  general  balance  sheet,  summarizing  and  simplifying  all 
prior  legislation.  Out  of  fear  of  committing  errors  in  so  delicate  a 
matter,  either  by  adding  dangerous  rules  or  by  omitting  essential 
ones,  they  came  to  consider  codification  as  a  task  well-nigh  impossi- 
ble. Hence  they  never  went  farther  than  to  consolidate  certain 
special  laws  bearing  on  specified  matters,  notably  commercial  or 
administrative  law.  The  civil  law  as  a  whole  has  remained  out- 
side the  efforts  at  codification.1 

The  English  were  no  more  favorable  to  codification  when  it  took 
the  form,  not  of  international  law,  but  of  international  conventions. 
Several  conferences  have  met  for  the  purpose  of  codifying  interna- 
tional private  law,  at  least  along  general  lines.  In  1881  England 
was  invited  to  one  of  these  conferences ;  but  its  government  de- 
clared with  great  definiteness  that  in  its  belief  no  international 
agreement  was  possible  except  upon  certain  specified  matters.2 
When  a  new  conference  was  called  in  1893,  England  refused  to  take 
part,  alleging  as  her  reason  the  specialized  nature  of  her  law.3 

English  opposition  to  codification  is  not  absolute,  however.  In 
her  colonies,  where  no  historical  body  of  law  existed,  certain  codes 
have  been  promulgated.  Thus,  beginning  with  1860,  India  and 
certain  other  colonies  received  from  England  a  series  of  codes 
regulating  almost  all  branches  of  law,  and  even  certain  parts  of 
the  civil  law  were  codified  in  India  between  1865  and  1872. 

1  For  English  efforts  toward  codification,  id.,  pp.  249-251. 

2  "Journal  de  droit  international  prive"  (1886),  p.  45. 

3  Renault,  "Les  conventions  de  La  Haye  (1896-1902)  sur  le  droit 
international  prive",  p.  19. 

259 


§  3]  PART   II      NATIONAL   CODIFICATION  [Chap.   V 

§  3.  Influence  upon  International  Law.  —  Strange  as  it  may 
seem,  the  Napoleonic  codification  of  the  civil  law  exercised  a 
notable  influence  upon  the  attitude  towards  international  rela- 
tionships, that  is,  upon  the  rules  of  international  law.  It  rooted  in 
the  countries  of  codification  the  idea  that  there  existed  precise  and 
permanent  rules  between  States  which  should  govern  their  inter- 
course. The  entire  literature  of  international  law  of  these  coun- 
tries was  occupied  with  explaining  the  international  rules,  which  it 
regarded  as  borrowed  from  various  sources  of  law,  including  custom. 
It  did  not  perceive  that  it  was  in  reality  giving  a  place  of  preemi- 
nence to  rational  speculation  and  the  principles  dominating  the  civil 
law.  Proof  of  this  lies  in  the  fact  that  most  of  these  authors 
arranged  the  material  as  in  the  system  of  civil  law.  They  even 
attempted  to  subject  certain  international  relations,  such  as  agree- 
ments and  prescription,  to  rules  borrowed  exclusively  from  the 
civil  law. 

Such  a  method  v/as  bound  to  have  logical  consequences,  and  they 
soon  manifested  themselves.  When  sundry  States,  acting  from 
quite  justifiable  motives,  refused  to  observe  these  supposedly 
fixed  rules,  and  followed  others,  the  international  jurists,  con- 
fronted with  these  new  departures  from  their  own  bookish  systems, 
never  thought  to  raise  a  doubt  whether  the  rules  of  international 
law  (in  fact  more  variable  even  than  those  of  any  other  law),  were 
after  all  susceptible  of  precise  formulation.  They  made  no  search 
for  motives  of  general  policy  in  the  conduct  of  States.  They  were 
content  to  censure  these  governments  for  having  infringed  the 
"  rules  "  of  international  law.1 

Such,  for  example,  was  their  attitude  towards  the  various  meas- 
ures employed  in  the  development  of  imperialism,  whose  many 
manifestations  (hegemony,  "  de  facto  "  occupation,  protectorate, 
hinterland,  so-called  peaceful  intervention,  grant  of  administrative 
powers,  long  term  lease  with  rights  of  sovereignty)  were  con- 
demned by  the  writers  of  the  countries  of  codification  in  the  name 
of  national  independence  and  sovereignty.  And  yet  these  mani- 
festations were  in  reality,  in  international  law,  the  starting  point 
for  a  renascence  which  has  become  necessary  by  reason  of  the 
economic  transformations  of  civilized  society. 

1  We  should  make  exception  in  favor  of  the  instruction  in  international 
law  mid  the  "jus  gentium"  by  Renault  and  Dupuis  in  tlir  "  Ecole  des 
Sciences  Politique*. "  Cf.  Dupuis,  "  Le  droit  de  la  guerre  maritime  d'apres 
les  doctrines  anglaises  contemporaines "  (Paris,  1889).  We  should  also 
mention  the  notes  by  Fauchille,  in  Bonfds,  "Manuel  de  droit  international 
public." 

260 


CHAP.  V]         INFLUENCE  OF  FRENCH  CODES  [§  3 

The  truth  is,  international  law  was  expounded  according  to  a 
thoroughly  unsound  method.  Except  with  regard  to  treaties,  which 
are  continually  expanding  their  scope,  international  law  was  not 
only  customary  in  origin  and  development,  but  always  inspired  by 
the  political  situation  of  the  moment.  Consequently  its  rules  were 
constantly  modified,  and  were  modelled  upon  the  variable  needs 
of  the  international  relations  of  the  civilized  world.  These  rela- 
tions were  not,  therefore,  governed,  as  was  too  often  believed,  by 
abstract  and  uniform  principles.  On  the  contrary,  it  was  from  the 
particular  policy  of  each  State  that  the  rules  of  international  law 
were  to  be  drawn,  —  a  policy  varying  according  to  the  level  of 
civilization  to  which  the  different  countries  might  have  attained 
or  according  to  the  special  situation  in  which  they  might  for  the 
moment  find  themselves.  It  was  this  last  circumstance  which 
gave  birth  to  an  American  international  law.1 

International  law  must,  therefore,  be  expounded  with  reference  to 
the  facts  of  diplomatic  history  and  of  contemporary  politics.  The 
former  investigates  the  continuous  changes  going  on  in  interna- 
tional relations  and  explains  their  motives ;  the  latter  determines 
the  rules  which  momentarily  govern  them  and  the  more  or  less 
profound  modifications  which  these  rules  have  undergone  or  will 
undergo  in  the  future.     Once  these  bases  are  laid  for  the  study  of 

1  The  general  reasons  for  an  American  international  law  may  here  be 
pointed  out :  The  Monroe  Doctrine  proposed  to  make  and  did  make  the 
Latin-American  Continent  independent  and  distinct  from  the  Old  World. 
It  opposed  the  idea  that  the  civilization  of  the  New  World  was  to  be  a 
mere  reproduction  of  the  Old,  as  is  the  case  to-day  in  that  newest  of  New 
Worlds,  Oceania.  The  fact  that  the  New  World  was  suddenly  cut  away 
from  the  Old,  following  the  revolution  which  won  for  it  its  independence 
and  placed  in  its  possession  vast  expanses  of  almost  uninhabited  territory, 
explains  all  the  great  problems  of  internal  and  external  policy  of  the  Ameri- 
can countries :  civil  wars  of  various  kinds,  political  isolation  of  the  coun- 
tries, quarrels  arising  out  of  the  delimitation  of  frontiers,  and  above  all, 
the  two  most  serious  problems  of  the  present  hour :  the  need  of  attracting 
European  immigration  with  its  consequences,  and  the  hegemony  of  the 
United  States  of  America.  These  conditions  gave  rise  to  as  many  ques- 
tions, which  in  so  far  as  peculiar  to  America,  originated  what  we  term 
American  International  Law.  The  basis  of  this  law  rests,  therefore,  upon 
a  three-fold  fact  not  found  in  Europe:  An  absence  of  treaties  of  alliance 
tending  to  establish  a  balance  of  power  among  each  other  or  with  Europe ; 
a  need  to  increase  the  population  by  immigration ;  and  North  American 
hegemony. 

It  is  certain  that  if  Latin-America  had  received  after  independence  a 
powerful  stream  of  foreign  immigration,  above  all  English,  her  States 
would  form  to-day  a  confederation  larger  and  more  powerful  than  North 
America ;  by  that  fact  the  European  balance  would  have  been  broken  and 
the  world  problem  of  to-day,  the  far-eastern  question,  which  interests  at 
once  Europe,  Asia,  America,  and  Oceania,  would  already  have  been  solved. 
[See  on  this  subject  the  distinguished  author's  later  and  more  elaborate 
exposition  in  his  essay  on  "Latin-America  and  International  Law" 
("American  Journal  of  International  Law",  III,  269).  —  Ed.] 

261 


§  3]  PART  II      NATIONAL   CODIFICATION  [Chap.    V 

international  law,  we  shall  abandon  the  errors  and  deceptions 
inevitable  in  a  theory  which  conceives  of  that  law  as  a  body  of 
fixed  and  definite  rules,  even  though  the  rules  have  in  fact  never 
been  certain,  or  have  fallen  into  disuse  or,  indeed,  have  never 
existed  save  in  the  minds  of  the  authors. 

And  so,  among  the  far-reaching  influences  of  the  Napoleonic 
codification,  with  its  conception  of  law  as  consisting  of  a  compre- 
hensive and  immutable  body  of  definite  and  fixed  rules,  we  must 
not  fail  to  include  this  attitude  which  has  dominated  in  the  inter- 
national law  of  the  nineteenth  century. 


2G2 


CHAP.    VI]  FOUR   NATIONAL   CODES   CONTRASTED 


[Introd. 


Chapter  VI 

THE  FRENCH  CODE  OF  1804,  THE  AUSTRIAN  CODE 
OF  1811,  THE  GERMAN  CODE  OF  1900,  AND  THE 
SWISS  CODE  OF  1907;  A  CONTRAST  OF  THEIR  SPIRIT 
AND   INFLUENCE 


By  Ivan  Perich  * 


Introduction 


§  1.  Roman  Law  and  Modern 
Codes  as  Instruments 
of  Unification. 

§  2.  The  French  Civil  Code  of 
1804. 
(1)  Outside  of  Germany. 
(2)  In  Germany.  (3) 
International  Signifi- 
cance of  the  French 
Code. 

§  3.  The  Austrian  Civil  Code  of 
1811. 


§  4.  The  German  Civil  Code  of 
1900. 
(1)  The  German  Civil  Code 
in  France.  (2)  Dis- 
tinguishing Principles  of 
the  German  Code.  (3) 
The  Judicial  Function 
under  the  German, 
Swiss  and  French 
Codes. 

§  5.     The  Swiss  Civil  Code  of  1907. 


Introduction.  —  One  fact  is  certain  and  indisputable  :  the  recip- 
rocal influence  of  nations.  This  fact  is  highly  conducive  to  that 
equality  of  nations  with  respect  to  social  conditions,  so  essential 
to  the  development  of  the  spirit  of  human  solidarity.  We  have 
here  a  phenomenon  similar  to  that  of  the  physical  world,  when 
media  of  different  temperatures,  coming  into  contact,  produce  a 
single  medium  of  uniform  temperature.  No  doubt  the  influence 
of  one  nation  upon  others,  or  vice  versa,  does  not  always  act  with 
the  same  intensity.  The  action  of  a  more  civilized  nation  upon  a 
less  is  stronger  than  the  latter's  influence  upon  the  former.     The 

1  [Professor  of  Law  in  the  Royal  University  at  Belgrade,  Serbia ;  Cor- 
responding member  of  the  "Institut  du  droit  compare." 

This  essay  appeared  in  the  "Revue  de  l'lnstitut  de  droit  compare" 
(Brussels),  Vol.  Ill,  pp.  58-88  (1910). 

Among  other  works  of  this  author  may  be  mentioned:  "La  condition 
juridique  des  bosniaques  et  des  herzegoviniens",  etc.;  "Influence  de 
l'unite  de  la  legislation  civile  sur  le  developpement  de  la  solidarity  parmi 
les  homines"  (Rome,  1910;  a  memoir  presented  to  the  First  Congress  of 
the  European  Federation,  at  Rome,  in  1909) ;  and  a  French  edition  (1903) 
of  the  Serbian  Constitution.  His  remaining  works  are  chiefly  in  the 
Serbian  language.  —  Ed. J 

263 


INTROD.]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

explanation  is  very  simple :  of  two  forces,  the  greater  is  more  far- 
reaching  and  perceptible  than  the  lesser.1 

It  is  useful,  and  we  should  rejoice,  that  forces  are  also  at  work  in 
social  phenomena  favorable  to  the  progress  of  the  spirit  of  soli- 
darity. For,  were  all  nations  of  equal  force  —  using  that  word  in 
its  larger  sense  —  though  having  different  social  institutions, 
their  reciprocal  influence  would  be  a  minimum.  The  result  would 
be  an  indefinite  continuation  of  the  diversity  of  institutions,  a 
condition  prejudicial  to  human  solidarity.  But  if,  among  several 
nations,  there  is  one  which  dominates  the  others  morally  and 
intellectually,  its  influence  will  be  very  strong  and  will  tend,  more- 
over, toward  one  result :  to  cause  the  servient  nations  to  adopt 
the  ideas  of  the  dominant  nation.  The  important  goal  is  to  secure 
equality  of  social  conditions  in  the  different  States,  in  order  to 
render  human  solidarity  possible,  let  the  course  be  what  it  may. 

But  it  is  rare,  especially  in  modern  times,  for  one  people  to  be  so 
superior  to  others  that  it  feels  no  influence  from  them.  Generally 
the  influence  between  nations  is  reciprocal,  so  that  a  state  of 
culture  is  finally  created,  intermediate  between  the  two.2  The 
principle  of  "  The  Declaration  of  the  Rights  of  Man  and  of  the 

1  By  force  should  not  be  understood  mere  physical  force,  but  also  moral 
and  intellectual  force.  It  is  natural  for  men  to  conform  their  ways  to 
those  of  persons  stronger  than  themselves.  They  are  not  to  be  blamed; 
to  do  so  would  be  as  senseless  as  to  reproach  the  earth  for  revolving  about 
the  sun.  Force  is  attraction,  influence,  and  command,  and  to  require 
that  men  emancipate  themselves  from  force,  would  be  to  desire  the  principle 
of  force  to  disappear  from  social  phenomena.  That  would  be  to  demand 
the  impossible. 

Moreover,  physical  force  is  always  said  to  transcend  the  two  other 
kinds  of  force,  moral  and  intellectual ;  and  this  is  held  regrettable.  The 
observation  is  not  just,  for  the  operation  of  a  force  depends,  not  upon  its 
intrinsic  character,  but  upon  its  intensity.  If  physical  force  happens  to 
transcend  moral  or  intellectual  force,  it  is  not  that  physical  force  is  in- 
herently superior  to  the  two  other  forces,  but  that,  in  a  given  case,  the 
physical  force  is  more  intense  than  the  moral  or  intellectual  force.  It 
follows  that  it  may  happen,  and,  in  fact,  often  does  happen,  that  moral 
and  intellectual  forces  overcome  physical  force.  Was  it  not  true,  for 
example,  that  Napoleon,  returning  from  Elba,  was,  from  the  material 
point  of  view,  infinitely  weaker  than  the  army  sent  against  him  by  Louis 
XV  III?  We  must  certainly  admit  it ;  and  yet  it  did  not  prevent  Napoleon 
from  overthrowing  this  physical  force.  By  reason  of  the  moral  force 
which  he  exercised  over  the  army  of  the  king,  Napoleon  witnessed  its  de- 
fection to  him  and  its  march  upon  Paris.  Cf.  E.  Marechal,  "Histoire  con- 
temporaine  de  1789  a  nos  jours",  Vol.  I,  p.  345. 

2  We  may  compare  this  phenomenon  to  the  example  referred  to  above 
of  the  two  media  of  different  temperatures  which,  coming  into  contact, 
finally  reach  a  common  temperature!.  And  just  as  in  this  example,  the 
degree  of  the  resultant  temperature  will  be  closest  to  the  degree  of  the 
medium  having  the  highest  temperature,  so  the  intermediate  state  of 
culture  which  we  have  just  mentioned,  will  approach  closer  to  the  state 
of  culture  of  the  more  civilized  than  of  the  less  civilized  nations. 

204 


CHAP.    VI]  FOUR    NATIONAL   CODES   CONTRASTED  [§  1 

Citizen",  that  all  persons  are  born  equal,  is  certainly  fundamen- 
tally wrong  so  far  as  nations  are  concerned.  In  other  words,  we 
know  that  nations  are  not  born  equal.  Perhaps,  due  to  the  tend- 
ency of  social  evolution  to  bring  nations  to  the  same  level,  they 
will  become  equal.  But  at  their  birth  they  differ  among  each 
other  —  if  we  may  be  permitted  the  comparison  —  as  the  linen 
of  the  humbly  born  babe  from  that  of  the  richly  born. 

§  1.  Roman  Law  and  Modern  Codes  as  Instruments  of  Unifica- 
tion. —  To  the  Roman  law,  it  may  be  said,  we  owe  the  greatest 
debt  for  the  unification  of  civil  legislation,  in  so  far,  of  course,  as 
unification  has  been  realized  to-day.  No  body  of  private  law  has 
exercised  so  profound  an  influence  upon  the  world.  This  is  not 
astonishing  if  we  recall  what  was  said  above  regarding  the  moral 
and  intellectual  influence  of  nations  upon  one  another.  The 
difference  between  the  state  of  culture  of  the  Romans  and  of  the 
other  nations  was  too  great  for  the  influence  of  the  former  not  to 
be  felt  with  great  force. 

Thus,  in  the  first  place,  Roman  law  expanded  into  the  provinces 
of  southern  France,  known  as  the  "  regions  of  written  law."  But 
the  northern  provinces  of  France  did  not  escape  its  influence, 
though  customary  law  dominated  there.  Consequently,  it  was 
very  natural  that  the  French  Civil  Code  (1804)  was  not  untouched 
by  Roman  law.  Indeed,  the  Code  has  been  very  correctly  called  1 
a  mere  "  compromise  between  customary  and  written  law."  2 

Roman  influence  has  been  especially  perceptible  in  German  law. 
This  seems  strange  if  we  look  only  at  the  racial  difference  between 
the  Romans  and  Germans.  But  it  is  explainable  upon  political 
grounds.  After  the  fall  of  the  Roman  Empire  and  the  division  of 
Charlemagne's  empire  by  the  Treaty  of  Verdun  in  the  year  S43,3 
the  German  Emperors,  from  Otto  I,  the  Great,  assumed  the  title  of 

1  Albert  Sorel,  "Livre  du  centenaire  du  Code  civil"  (Paris,  1904),  Vol.  I, 
Introduction. 

2  By  a  "compromise "  we  must  be  understood  to  mean  that  the  different 
legal  institutions  which  found  a  place  in  the  French  Code  were  borrowed, 
some  from  the  customary  law,  some  from  the  written  law  (Roman  law), 
and  not  that  a  compromise  took  place  in  any  single  juridical  institution.  In 
the  latter  sense  compromise  must  have  been  impossible.  For  example, 
how  reconcile  the  Roman  rule  that  failure  to  execute  an  agreement  does 
not  give  to  the  injured  party  the  right  to  rescind  unless  an  express  clause 
has  given  the  right  ("lex  commissoria"),  with  the  rule  of  French  custom- 
ary law  which  guarantees  to  each  contracting  party  the  right  to  annul 
the  contract  when  the  other  party  fails  to  execute  his  obligation?  The 
French  codifiers  of  1804,  then,  did  not  have  to  face  a  compromise  in  this 
sense,  but  simply  an  election  between  the  two  systems.  We  know  that  it 
was  the  customary  law  which  the  Civil  Code,  Art.  1184,  adopted  in  this 
particular  case. 

3  Cf.  Duruy,  "Histoire  de  France",  Vol.  I,  p.  205. 

265 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

Roman  Emperors,  and  their  State  that  of  the  Holy  Roman  Empire 
of  the  German  Nation,  so  that  politically  Germany  was  but  a 
continuation  of  the  true  Roman  Empire.  The  consequence  was 
the  introduction  of  Roman  law  into  the  Germanic  countries,1 
that  is,  the  countries  of  present-day  Germany  and  also  of  Austria. 
We  may  thus  easily  understand  the  difference  between  the  French 
Civil  Code  on  the  one  hand,  and  the  German  law  (prior  to  the 
codification  of  1896)  and  the  Austrian  Civil  Code  on  the  other. 
The  first  adopted  Roman  law  only  partly  ;  the  last  two  legislations 
were,  in  principle,  nothing  but  modernized  Roman  law.  Modern 
Roman  law  ("Pandektenrecht"),  or  the  German  "common  law" 
before  the  introduction  of  the  Civil  Code,  constituted  in  that  country, 
in  the  1800  s,  almost  the  only  subject  of  study  in  private  law, — a 
study,  however,  that  did  the  highest  credit  to  German  legal  science. 
The  codification  of  1896  put  an  end  to  these  labors  by  giving  them 
a  new  basis,  the  German  Civil  Code  ("  Biirgerliches  Recht  fur  das 
Deutsche  Reich").  It  hardly  need  be  added  that  this  Code, 
though  not  a  compilation  of  Roman  law,  bears  a  deep  impress  of  it ; 
the  difference  between  French  and  German  law,  which  we  noted 
above,  has  not  disappeared  since  this  codification.  As  to  the 
Austrian  Civil  Code,  which  went  into  operation  at  a  time  (1811) 
when  Roman  law  alone  met  all  the  needs  of  private  legal  relations, 
it  is  even  more  than  the  German  Code  saturated  with  Roman  law. 
But  the  influence  of  Roman  law  was  not  limited  to  the  west  or 
center,  it  also  made  itself  felt  in  eastern  Europe.  The  compila- 
tion of  the  Emperor  Justinian  must  certainly  have  exercised  an 
attraction  upon  the  governments  and  the  cultured  minds  of  the 
Eastern  Roman  Empire.  This  observation  is  especially  important 
in  relation  to  the  Serbian  and  Bulgarian  States,  which  in  the 
1100s,  1200s,  and  1300s  had  attained  great  power  and  prosperity.2 

1  This  introduction  had  been  especially  marked  with  respect  to  the 
"general  part"  of  private  law  ("Der  allgemeine  Teil"  of  the  Civil  Code 
of  1890)  and  the  law  of  obligations  ("Die  Schuldverhaltnisse",  of  the 
same  Code);  "because  its  introduction",  said  K.  Heilfron  ("Deutsche 
Reiehsgeschichte  ",  §  453)"  was  notably  facilitated  by  the  incompleteness 
of  German  juridical  development  in  this  field." 

2  To  form  a  correct  idea  of  the  influence  which  the  Byzantine  law,  i.e. 
the  Roman  law,  exercised  upon  1  he  legislation  of  old  Serbia,  we  should  read 
the  highly  instructive  introduction  by  Stoyan  Novakovich,  President  of 
the  Serbian  Academy  of  Sciences,  to  his  "Code  of  the  Serbian  Emperor 
Stefan  Dushan"  (1905  ed.).  The  Emperor  Dushan  reigned  in  Serbia 
from  1331  to  1355  and  Serbia  was  then  the  most  powerful  country  of 
southeastern  Europe.  Its  Code,  justly  celebrated  both  for  its  substance 
and  for  the  fact  thai  al  thai  period  it  was  practically  the  only  codification 
in  all  Europe,  was,  during  the  1800s,  theo'bjecl  of  numerous  studies  on  the 
pari  of  Russian,  Polish,  Chech,  Croatian,  Bulgarian,  and  Serbian  scholars. 

200 


ClIAP.    VI]  FOUR    NATIONAL   CODES    CONTRASTED  [§  1 

This  influence  of  the  Roman  law  upon  a  greater  part  of  Europe 
has  powerfully  contributed  to  the  establishment  throughout  of 
similar  juridical  principles.  This  result  would  certainly  not 
have  been  obtained,  had  the  law  of  the  European  States  been  from 
the  beginning  subjected  to  different  influences. 

We  must,  however,  here  note  the  great  difference  between  the 
present  states  of  property  law  and  family  law,  as  compared  to 
Roman  law.  Whereas,  aside  from  the  innovations  natural  to  a 
progressing  humanity,  the  law  of  property  is  to-day  •substantially 
what  it  was  in  the  time  of  the  Romans,  it  is  not  so  with  family 
law.  The  Roman  and  the  modern  family  have  diverged  upon 
more  than  one  important  point.1  The  reason  is  that  the  constitu- 
tion of  the  family  is  intimately  related  to  the  political  organization 
of  the  State,  and  that  this  has  undergone  very  many  changes  since 
Roman  times. 

If  we  inquire  into  the  cause  of  this  fact,  it  is  found  to  be  that  the 
laws  affecting  political  organization  are  less  close  to  the  material 
relations  of  life  than  the  private  law  of  property  (patrimony). 
Consequently  the  former  represent  relations  in  which  physical 
laws  (i.e.  natural)  have  not  so  strong  a  hold  as  in  property  law, 
which,  regulating  the  material  relations  of  men,  feels  the  action 
of  these  same  physical  laws  to  a  greater  degree.  It  follows  that 
the  human  mind,  which,  concurrently  with  physical  law,  plays  a 
role  of  intermediary  or  agent  in  juridical  phenomena  in  general, 
gains  a  freer  stride  when  the  problem  is  one  of  political  law  than 
when  it  is  of  private  law :  the  former  is  characterized  by  greater 
abstraction,  greater  intellectual  liberty  toward  the  material  ele- 
ments of  life  than  the  latter.  Now,  intellectual  action  is  far  more 
liable  to  change  than  physical  law,  and  that  is  why  the  evolution 
of  private  law  is  slower  than  that  of  public  law. 

The  principal  characteristic  of  Roman  law,  a  characteristic 
which  has  served  to  unite  the  civil  law  of  the  different  peoples 
which  have  fallen  under  its  influence,  is  certainly  the  institution  of 
private  ownership.  This  principle  brought  with  it,  at  first  among 
the  Romans,  later  among  their  successors,  the  free  rivalry  of  human 
action,  —  the  principle  to-day  called  "individualism."  These  two 
principles,  especially  the  first,  wrought  a  breach  in  feudalism  and 
its  land  system,  which  was  the  denial  of  the  free  circulation  of  land 
(ownership)  and  of  the  liberty  of  the  individual  (individualism). 
The  feudal  period  replaced  the  Roman  period,  but  it  was  not  long 

1  Cf.  Emile  Stocquart,  "Aperfu  de  revolution  juridique  du  mariage", 
Vol.  II,  pp.  48,  49,  140. 

267 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

in  disappearing  in  its  turn,  because  of  Roman  private  law,  among 
other  things,  and  its  diffusion  through  Europe.1 

The  tendency  toward  unification,  begun  upon  so  vast  a  scale 
by  the  Roman  law,  has  increased  in  modern  times  by  reason  of 
the  codifications  undertaken  successively  by  several  European 
States.  Had  these  codifications  no  other  result  than  to  hasten  the 
work  of  unifying  the  civil  law,  that  would  suffice  to  make  us  pro- 
nounce in  their  favor.  It  is  surely  no  mean  result  to  spread  and 
strengthen  the  sense  of  solidarity  among  men,  a  solidarity  which 
can  but  gain  through  the  unification  of  civil  legislation. 

Our  purpose  does  not  permit  us  to  enter  into  the  debate  upon 
codification.  We  shall  limit  ourself  to  the  statement  that  with- 
out codification,  that  is,  without  written  and  precise  laws,  com- 
manded by  the  sovereign  power,  there  would  be  no  legal  control  of 
life  within  a  State,  and  consequently  neither  order  nor  peace. 
And  once  the  necessity  of  codification  is  recognized,  the  soundness 
is  also  recognized  of  the  doctrine  that  the  legislator  does  and  must 
proceed  in  a  rationalistic  manner. 

For,  even  admitting  that  the  law  emanates  from  the  mass  of 
the  people  by  slow  evolution  —  an  admission  which  is  far  from 
being  absolutely  correct  —  nevertheless  the  function  of  the  codifier 
would  be  very  important.  His  task  would  be  to  raise  an  orderly 
structure  from  all  the  materials  which  the  popular  mass  places  at 
his  disposal.  The  law-maker  would,  therefore,  be  an  architect, 
and  the  architect  is  a  creator  as  well.  But  more  than  this,  the  draft 
of  a  code  can  and  should  go  beyond  the  relations  which  he  finds 
already  established  between  individuals.  Aided  by  reason,  the 
legislator  may  go  beyond  his  period,  completing  the  legislative 
work  of  the  people,  and,  let  us  repeat,  creating  norms  rationally. 
It  would  indeed  be  strange  were  it  otherwise.  How,  in  fact,  is  it 
possible  to  believe  that  law,  which  is  something  abstract  or  intel- 
lectual, can  be  created  unconsciously  by  the  mass  of  the  inhabit- 
ants of  a  nation  and  not  also  by  the  conscious  reason  of  the  legisla- 
tor? On  the  contrary,  the  latter  must  be  the  principal  source  of 
law.2 

1  Byzantium,  which  was  subjected  to  the  direct  influence  of  the  Roman 
law,  never  developed  feudalism.  Cf.  Novakovich,  "The  Code  of  the 
Serbian  Emperor  Dushan",  p.  31  (written  in  Serbian). 

2  Cf.  on  codification:  Saleilles,  "Introduction  a  1' etude  du  droit  civil 
allemand",  in  which  is  described  the  celebrated  scientific  dispute  between 
tin'  dogmatic  school  of  Thibaut,  who  approved  codification,  and  the  his- 
torical s<'hr,,)l  of  Savigny,  who  disapproved  it.  Also  cf.  Geny,  "Methode 
d'interpretation  et  sources  en  droit  prive  positif  ",  and  preface  by  Saleilles; 
Larnaude,  in  "  Livre  du  centenaire  du  Code  civil",  chapter  on  "Le  Code 
civil  el  la  necessite  de  sa  revision",  p.  901 ;   Eustache  Pilon,  "Reforme  du 

2G8 


Chap.  VI]  FOUR  NATIONAL  codes  contrasted  [§  2 

But  let  us  return  to  the  question  of  the  influence  of  the  several 
codifications  upon  legislative  uniformity.  It  is  certain  that  the 
law  of  a  country  exercises  greater  influence  upon  other  countries 
if  it  is  codified.  The  code  becomes,  as  it  were,  a  beacon,  projecting 
its  rays  afar,  whereas  a  body  of  law  that  is  scattered,  disseminated, 
and  uncodified,  can  never  possess  such  influence.  French  law 
did  not  encircle  the  earth  until  it  had  been  codified.  The  same  is 
true  of  German  law.  In  its  common  law  form,  as  it  existed  prior 
to  codification,  it  could  in  no  wise  be  compared  to  French  law, 
from  the  point  of  view  of  the  importance  attached  to  it  by  other 
nations.  And  we  must  add  that,  to  enjoy  the  widest  influence,  a 
new  code  must  be  that  of  a  nation,  not  only  of  culture,  but  efficient 
and  powerful.  For  the  world  copies  a  certain  few  examples,  and 
for  an  example  to  be  followed,  it  must  be  in  evidence ;  and  only 
the  great  nations  are  so  placed.  It  follows  that  no  matter  how 
perfect  the  code  of  a  small  State  may  be,  it  can  never  spread 
abroad  as  generally  as  the  code  of  a  powerful  State.  We  see, 
then,  how  important  it  is  for  such  a  code  to  be  a  work  of  excellence. 
There  is  danger,  indeed,  lest  great  States,  which  so  often  become 
examples,  give  to  the  world  types  of  reactionary  or  mistaken 
legislation. 

§  2.  The  French  Civil  Code.  —  The  influence  of  the  French 
Civil  Code  was  considerable.1 

(1)  Outside  of  Germany.  —  Some  countries  adopted  the  French 
Civil  Code  in  its  entirety. 

Such  is  Belgium.  In  1814  that  country  was  separated  from 
France  and  reunited  to  Holland.  The  French  Civil  Code  (called 
the  Napoleonic  Code  after  September  3,  1807)  came  into  force 
there  from  May  1,  1809,  by  a  Decree  of  Louis  Bonaparte,  issued 
February  24  of  the  same  year  by  order  of  the  Emperor,2  and  became 
the  common  statute  of  the  new  realm.  It  remained  so  up  to  the 
time  when  the  Revolution  of  September,  1830,  rendered  Belgium 
independent.3    After  that  Revolution,  Belgium  continued  in  force 

Code  civil  par  voie  de  revision  generale",  ibid.,  p.  935  ;  Planiol,  "Inutilite 
d'une  revision  generale  du  Code  civil",  ibid.,  p.  955;  Saleilles,  "Le  Code 
civil  et  la  methode  historique",  ibid.,  p.  55. 

1  To  be  convinced  of  this  we  need  but  read  "Livre  du  centenaire  du 
Code  civil",  Part  III,  "Le  Code  civil  a  l'etranger",  pp.  587  et  seq.,  con- 
tainiug  studies  by  Carl  Crome,  J.  Kohler,  E.  Midler,  J.  Van  Biervliet, 
Hanssens,  P.  B.  Mignault,  Pierre  Arminjon,  C.  P.  Chironi,  Gorai,  P. 
Ruppcrt,  Rolland,  C.  D.  Asser,  C.  G.  Dissescou,  Alfred  Martin. 

2  Cf.  His  letter  to  Louis  Bonaparte,  October  31, 1807,  "Correspondance", 
Vol.  XVI,  p.  155. 

3  Ha?issens,  in  "Livre  du  centenaire  du  Code  civil", chapter  on  " Le  Code 
civil  en  Belgique",  p.  681. 

269 


§  2]  PART    II      NATIONAL    CODIFICATION  [Chap.    VI 

the  Napoleonic  Code,1  while  Holland  enacted  on  October  1, 1838,  a 
new  body  of  civil  law.2  Of  course  the  French  Civil  Code  was  not 
afterwards  without  influence  upon  Dutch  law  itself.3 

Roumania  came  next.  Its  present  Civil  Code  was  promulgated 
December  4,  1864,4  and  came  into  operation  December  1,  18G5. 
Although  the  royal  decree  of  July  11,  1864,  commanded  that  the 
French  Civil  Code  be  used  as  a  model  in  the  work  of  codification, 
"  it  would  nevertheless  be  a  grave  mistake  to  suppose  that  the 
Roumanian  Civil  Code  is  a  servile  translation  of  the  French  Civil 
Code."  5 

The  Civil  Code  of  Spain  of  1889  was  to  an  equal  degree  drafted 
under  the  influence  of  the  French  Civil  Code.6  The  latter  is  still 
the  law  in  the  Grand  Duchy  of  Luxembourg,  though  very  numer- 
ous modifications  have  been  introduced.7  As  to  the  Code  of 
Monaco,  it  has  been  said  :  "In  spite  of  the  long  work  of  prepara- 
tion, the  new  Code  remained,  for  the  most  part,  a  textual  reproduc- 
tion of  the  Code  of  1804."  8 

Italy,  linked  to  France  by  so  many  ties  of  race  and  history, 
especially  felt  the  influence  of  the  French  Civil  Code.  The  Code 
now  in  force  was  promulgated  in  Florence  June  25,  1865,  and  came 
into  operation  from  January  1,  1866  (in  Venetia  in  1872).  "  Com- 
pared with  the  Code  of  King  Albert,"  says  Planiol,  "  the  Code  of 
1865  is  a  marked  return  towards  our  own,"  i.e.  towards  the  French 
Code.9 

The  French  Civil  Code  continues  to  be  the  foundation  of  the 
law  of  the  Swiss  Canton  of  Geneva,  according  to  Alfred  Martin, 
from  whom  we  learn  also  the  influence  of  the  French  Civil  Code 

1  Art.  139,  Belgian  Constitution;  cf.  Dareste,  "Les  constitutions 
modernes",  Vol.  I,  p.  75. 

2  Hanssens,  in  "  Livre  du  centenaire,  etc.",  chapter  on  "  Le  Code  civil  en 
Belgique",  p.  G82. 

3  Asser,  ibid.,  "Le  Code  civil  dans  les  Pays-Bas",  p.  817. 

4  Planiol,  "Traite  elementaire  du  droit  civil",  Vol.  I,  p.  53. 

5  Dissescou,  "Livre  du  centenaire,  etc.",  chapter  on  "L'Influence  du 
Code  civil  francais  en  Roumanie",  p.  856.  The  author  continues:  "A 
large  number  of  provisions  were  modified  or  suppressed ;  a  few  original 
ones,  taken  from  the  early  law,  were  introduced.  Especially  with  regard 
to  liens  and  hypothecs,  we  preferred  to  follow  the  Belgian  law  of  1851 ; 
this  lias  oil  en  given  rise  to  conflicts  and  inconsistencies." 

6Publishted  in  the  "Gaceta"  of  July  25  to  27;  cf.  Planiol,  "Traite 
elementaire  de  droit  civil",  Vol.  I,  p.  51. 

7  For  these  cf.  Ruppert,  "Livre  du  centenaire,  etc.",  chapter  on  " Modi- 
fications apportees  au  Code  civil  dans  le  Grand-Duche  de  Luxembourg 
(1807-1904)",  p.  793. 

8  Rolland,  ibid.,  "  Le  Code  civil  de  1804  dans  la  Principaute  de  Monaco", 
p.  807. 

9  Planiol,  "Traite  elementaire  de  droit  civil",  Vol.  I,  p.  52 ;  French  trans. 
of  Italian  Civil  Code,  Orsier  (Paris,  1866),  and  Gandolfi  (Anneey,  1868). 

270 


Chap.    VI]  FOUR   NATIONAL   CODES   CONTRASTED  [§  2 

upon  the  other  Cantons  of  the  Romanized  districts  of  Switzer- 
land.1 

There  is  yet  another  country  over  which  the  Napoleonic  Code 
has  also  exercised  a  certain  influence,  Serbia.  This  country 
received  no  attention  in  the  "  Livre  du  centenaire  du  Code  civil", 
apparently  because  the  influence  was  unknown.  The  Serbian  Civil 
Code  —  if  we  may  be  permitted  to  turn  to  it  a  moment  —  was 
promulgated  in  1844,  and  is,  in  principle,  a  translation,  though 
abridged,  of  the  Austrian  Civil  Code  of  1811.  But  in  the  following 
years  its  first  form  underwent  important  changes.  Of  these  the 
more  important  are  those  of  May  5,  1864,  in  the  reign  of  Prince 
Michael  Obrenovitch,  who  had  surrounded  himself  by  men  who 
had  pursued  their  studies  in  France.  These  modifications  come 
for  the  most  part  from  the  French  Civil  Code.  We  may  cite  as 
examples :  Art.  303a,  upon  the  "  Actio  Pauliana  "  ;  Art.  565, 
upon  the  revocation  of  gifts  "  inter  vivos",  made  to  the  detriment 
of  creditors  whose  claims  are  evidenced  by  writing,  or  of  heirs  of 
the  undisposable  portion  of  an  inheritance  ("  reserve  "),  or  of  the 
widow ;  Arts.  601a,  602a,  603,  604,  and  604a,  upon  loans  at  inter- 
est ;  Arts.  928a,  928b,  928c,  928d,  928e,  928f,  938g,  upon  extinctive 
prescription,  etc.  The  same  is  true  of  Art.  130,  modified  May  7, 
1868,  adopting  the  rule  prohibiting  inquiry  into  the  paternity  of 
illegitimate  children. 

(2)  In  Germany.  —  We  finally  come  to  the  influence  of  the 
French  Civil  Code  upon  German  private  law.  Here,  as  is 
natural,  the  Napoleonic  Code  did  not  exercise  the  same  ascend- 
ancy as  in  Latin  countries.  Two  nations  of  one  race  are  more 
open  to  reciprocal  influence  than  two  of  different  races.  Further- 
more, the  French  Civil  Code  entered  German  countries  as  part 
of  the  conqueror's  system,  and,  for  that  reason,  it  could  not 
have  been  welcome  to  the  conquered  people.  And  lastly,  the 
fact  that  the  French  Code  was  partially  based  upon  custom- 
ary law,  while  German  private  law  was  essentially  Roman,  raised 
an  obstacle  to  the  exercise  of  any  very  marked  influence  upon 
German  law. 

Nevertheless  the  Napoleonic  Code  did  exercise  an  influence  upon 
German  countries,  simply  because  every  force,  as  we  already 
observed,  produces  a  reaction  upon  surrounding  conditions.  Now 
the  French  Code  was  a  veritable  force  :  first,  through  its  intrinsic 

1  "Livre  du  centenaire,  etc.",  chapter  "Le  Code  civil  dans  le  Canton  de 
Geneve",  Vol.  II,  p.  875.  [A  uniform  Swiss  Civil  Code  was  not  enacted  till 
December  10,  1907.  —  Transl.] 

271 


§  2]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

value,  and  second,  because  at  that  time  it  was  the  Code  of  the  most 
powerful  State  of  continental  Europe. 

Having,  in  a  certain  measure,  felt  the  influence  of  the  French 
Code  before  its  own  codification,  German  law  naturally  also  re- 
tained the  impress  in  its  later  form  as  the  Code  of  William  II,  in 
1900.  It  is  needless  to  enumerate  all  the  legal  rules  in  which  the 
German  law  has  followed  the  French  Code.1  We  will  cite  but  two 
examples,  —  examples,  indeed,  of  great  practical  value.  The 
first  relates  to  the  acquisition  of  title  to  movable  property,  when 
the  alienor  is  not  the  owner  of  the  thing  alienated;  the  second 
relates  to  the  transfer  of  possession  and  title. 

(a)  Acquiring  Title  "  a  non  domino."  Under  Roman  law,  one 
who  acquired  possession  of  movable  property  "  a  non  domino  " 
did  not  become  the  owner,  even  though  in  good  faith.  There 
lacked,  for  ownership,  the  three  years'  possession  necessary  to 
the  "  usucapio  "  of  movable  property.2  Such  was  also  the  German 
common  law  prior  to  codification,3  as  adopted  by  the  Austrian 
Civil  Code  of  181 1,4  which  by  Art.  367  provided  merely  for  the 
exceptions  to  the  rule.5  By  adopting  the  rule  of  the  customary 
law,  the  French  Civil  Code  enunciated  a  very  different  principle. 
Article  2279  declares  :  "  With  regard  to  movable  property,  posses- 
sion is  equivalent  to  title."  By  this  provision  the  bona  fide 
transferee  of  movable  property  becomes  owner  by  the  mere  act  of 
acquiring  possession,  without  having  to  concern  himself  about  the 
soundness  of  the  title  of  his  transferor.  The  only  exception  to  this 
rule  is  in  case  of  loss  or  theft.  By  Art.  2280,  an  action  to  recover 
possession  may  be  brought  by  the  owner  within  three  years.6  The 
Code  of  William  II  abandoned  the  German  rule  upon  this  point  and 

1  Cf.  especially,  Ernest  Barre,  "Le  Code  civil  allemand  et  le  Code  civil 
francais  compares  entre  eux  "' (French  trans,  by  Jacques  Hartmann); 
Scherer,  "Principales  differences  entre  le  Code  Napoleon  (1804)  et  le  Code 
Guillaume  II  (1900)";  "Livre  du  centenaire  du  Code  civil",  articles  by 
Crome,  "Les  similitudes  du  Code  civil  allemand  et  du  Code  civil  francais", 
p.  587;  ibid.,  Kohler,  "Le  Code  civil  francais  dans  la  theorie  et  dans  la 
pratique  allemandes",  p.  617  ;  ibid.,  Midler,  "  Le  Code  civil  en  Allemagne", 
p.  627. 

2  Sohm,  "Institutionen",  §317;  Otto  Knappe,  "Grundriss  der  Romi- 
schen  Rechtsgeschiehte",  §212;  P.  F.  Girard,  "Manuel  elementaire  du 
droit  romain",  p.  295. 

3  Baron,  "Pandekten",  §§  142,  264:   "Die  Ersitzungsfrist." 

1  Art.  i486.  "Ownership  in  a  movable  object  is  perfected  through  three 
years'  possession  in  good  faith." 

5  Stubenrauch,  "Commentar  zum  allgemeinen  oesterreichischen  biir- 
gerlichen  Gesetzbuche",  Vol.  I,  367;  E.  Demelius,  "Grundriss  des  Sachen- 
rechts",  §  35. 

6  Baudry-Lacantinerie  and  A.  Tissier,  "De  la  prescription",  pp.  587 
et  seq. 

272 


CHAP.    VI]  FOUR   NATIONAL   CODES    CONTRASTED  [§  2 

adopted  the  principle  of  the  French  law,  as  is  shown  by  Arts. 
932,  933  and  934.1  For  example,  Art.  932  declares :  "  By  an 
alienation  made  under  Art.  929  the  acquirer  becomes  owner  even 
though  the  thing  does  not  belong  to  the  alienor,  unless  he  lacked 
good  faith  at  the  time  at  which  according  to  these  provisions  he 
would  acquire  ownership."  2  The  drafters  of  the  German  Code 
were  influenced  by  the  same  reasons  as  the  French  legislators  of 
1804,  that  is,  to  guarantee  the  safe  circulation  of  movable  property. 
And  it  is  true  that  a  free  circulation  gains  much  by  the  rule : 
"  With  regard  to  movable  property,  possession  is  equivalent  to 
ownership."  It  must  be  conceded  that  economic  and  material 
interests  have  wrought  this  change  in  the  German  law ;  the  same 
interests,  indeed,  which  in  the  Code  of  William  II  secured  the 
adoption  of  many  other  rules  of  law  unknown  to  German  common 
law  prior  to  codification.  For  example,  there  are  the  possessory 
defences  of  the  party  in  physical  control  of  an  object,  as  contrasted 
to  the  party  in  possession  but  not  in  control.3 

(b)  Transfer  of  Possession  and  Title.  The  second  example 
relates  to  acquiring  possession  and  title  by  contract.  We  know 
that  under  French  law  the  transferee  becomes  owner  "  inter 
partes  "  by  the  mere  fact  of  the  agreement,  if,  of  course,  the  thing 
alienated  is  a  "  res  certa."  It  follows  that  the  transferee,  by 
sole  effect  of  the  contract,  obtains  possession  of  the  thing  in  con- 
templation of  law.  Upon  conclusion  of  the  contract  he  lacks  only 
physical  control,  and  this  he  will  also  have  upon  delivery  of  the 
thing  to  him.  The  German  common  law  prior  to  codification, 
following  the  Roman  law,  recognized  a  different  rule.  By  it  the 
contract  did  not  of  itself  transfer  title  ;  it  only  had  power  to  create, 
as  against  the  "  tradens",  an  obligation  to  make  the  "  accipiens  " 

1  The  French  rule  ("With  regard  to  movable  property,  possession  is 
equivalent  to  title")  had  already  penetrated  the  German  law  through  the 
German  Commercial  Code  of  1897,  Art.  366.  Cf.  Dernburg,  "Das  biirger- 
liche  Recht  des  deutschen  Reichs  und  Preussens",  bk.  Ill,  §  306 ;  Ernest 
Barre,  "Le  Code  civil  allemand  et  le  Code  civil  francais  compares  entre 
eux",  p.  62. 

2  Cf.  Jules  Gruber,  "Code  civil  pour  1' Empire  d'Allemagne  avee  la  loi 
d'introduction,  texte  allemand  avec  traduction  francaise",  p.  354 ;  Barre, 
op.  cit.  supra,  p.  62;  Dernburg,  "Das  biirgerliche  Recht  des  deutschen 
Reichs  und  Preussens",  bk.  Ill,  §§  305  et  seq.;  Otto  Fischer  and  Wilhelm 
Henle,  " Biirgerliehes  Gesetzbuch",  §§497,  498;  Matthiass,  "Lehrbuch 
des  liiirgerlichen  Rechtes",  Vol.  II,  §§  58  et  seq.:  " Eigenthumserwerb  von 
beweglichen  Sachen." 

3  Called  respectively,  "D^r  unmittelbare  Besitzer"  and  "Der  mittel- 
bare  Besitzer."  Cf.  German  Civ.  C.  Arts.  854  to  872 ;  Barre,  op.  cit.  supra, 
p.  40 ;  Scherer,  "Principales  differences  entre  le  Code  Napoleon  et  le  Code 
Guillaume  II",  p.  74 ;  Dernburg,  op.  cit.  supra,  bk.  Ill,  §§46  and  70  el  seq. ; 
Matthiass,  op.  cit.  supra,  Vol.  II,  §§  5  et  seq. 

273 


§  2]  PART   II      NATIONAL   CODIFICATION  [Chap.    VI 

owner  of  the  thing  through  tradition.  Before  delivery  the  trans- 
feree had  neither  title  nor  possession  of  the  thing,  even  in  con- 
templation of  law.  Setting  out  from  the  same  principle,  it  is 
true,  the  German  Civil  Code  has,  nevertheless,  introduced  some 
important  modifications.  The  most  notable  of  these  are  Arts.  931 
and  934.1  Thus,  at  least  as  to  movable  property,  the  German  Civil 
Code  has,  upon  this  point,  approached  the  French  Civil  Code, 
by  providing  for  cases  where  the  mere  intent  of  the  contract- 
ing parties,  independent  of  delivery,  can  transfer  possession  and 
title.2 

(3)  International  Significance  of  the  French  Code.  —  The  French 
Civil  Code,  the  universal  influence  of  which  was  so  favorable  to  the 
development  of  solidarity  between  nations,  is  in  itself  distinguished 
by  its  method  and  its  ideas.  It  introduced  the  rationalistic 
method  into  the  science  of  law,  the  same  method  which  its  authors 
had  employed.  This  method  had  a  beneficial  consequence.  It 
started  the  period  of  codification  in  Europe.  The  codes  first 
brought  order  and  unity  into  the  internal  legislation  of  the  different 
countries.  They  assured  the  reciprocal  influence  of  nations,  and 
encouraged  scientific  investigation  by  recognizing  a  higher  value 
in  the  human  mind.  This  favorable  influence  continues ;  it  has 
been  strengthened  by  the  victory  of  the  doctrines  of  codification 
in  Germany,  where  they  had  met  the  strongest  opposition.  To 
nationalize  legal  science  (the  complete  rejection  of  rationalism  in 
law  leads  to  this  result)  is  to  encourage  the  separatist  tendencies 
of  nations. 

What  are  the  underlying  principles  of  the  French  Civil  Code? 
They  are  fundamentally  those  of  the  Roman  law :  property  and 
liberty.  The  Civil  Code  liberated  man  and  his  land.  It  is  a 
product  of  individualism,  founded  upon  the  concept  of  the  "  homo 
ceconomicus",  a  conception  deduced  from  the  same  ideal  as  natural 
law,  that  is  to  say,  non-transformism.  The  Civil  Code  of  1804 
established  the  economic  principle  of  "  laisser  passer."  It  has  been 
called  the  "  Code  bourgeois",  because  it  powerfully  aided  the 
development  of  wealth  and  consequently  of  social  inequalities. 
The  introduction  of  the  Civil  Code  into  the  majority  of  Latin 

1  Art.  931.  "Where  a  third  party  is  in  possession  of  the  thing,  assign- 
ment by  the  owner  to  the  acquirer  of  the  claim  for  the  return  of  the 
thing  takes  the  place  of  delivery"  [trans,  by  Wang,  London,  1907] ;  cf. 
Gruber,  "Code  civil  pour  l'Empire  d'allemagne  avec  la  loi  d'introduction, 
texte  allemand  avec  traduction  francaise",  pp.  354,  355  ;  Dernburg,  "Das 
Sachenrecht",  p.  303. 

2  Crnme,  "Livre  du  centenaire  du  Code  civil",  chapter  on  "Similitudes 
du  Code  civil  allemand  et  du  Code  civil  francais",  p.  602. 

274 


CHAP.    VI]  FOUR   NATIONAL   CODES    CONTRASTED  [§  3 

countries,  and  its  influence  upon  other  States,  have  given  to  Euro- 
pean law  of  the  1800s  its  excessively  individualistic  stamp.  But 
this  has  been  absolutely  inevitable.  Only  when  a  principle  be- 
comes excessive  is  its  abandonment  assured.  Egoism  was  neces- 
sarily destined  to  be  pushed  to  its  extreme  limit,  because  of  a 
merciless  individualism.  Then  men  began  to  experience  a  distaste 
for  this  spirit  and  to  think  more  seriously  about  human  solidarity 
and  brotherhood.1 

§  3.  The  Austrian  Civil  Code.  —  The  Austrian  Civil  Code, 
promulgated  in  1811,  under  the  reign  of  the  Emperor  Francis  I,2 
has  not  enjoyed  so  far-reaching  a  renown  as  the  Napoleonic  Code, 
although  it  was  a  very  excellent  work.  The  fact  is  that  Austria, 
repeatedly  conquered  by  Napoleon,  naturally,  could  not  by  its 
codification,  any  more  than  by  other  internal  events  of  its  history, 
exercise  upon  the  world  an  influence  equal  to  that  of  France. 
Moreover,  it  was  not  to  be  expected  that  the  Latin  nations  would 
take  as  a  model  the  Austrian  Code  (which  was  in  fact  a  German 
code)  rather  than  the  French  Code.  The  Austrian  Code  had  only 
eastern  Europe  towards  which  to  spread.     It  resembled  Austrian 

1  Esmein,  "  Livre  du  eentenaire  du  Code  civil,"  chapter  on  "  L'originalite 
du  Code  civil",  Vol.  I,  p.  5,  disputes  the  rationalistic  character  of  the  legis- 
lation of  1804  and  shows  the  intimate  relation  of  this  law  to  the  prior  period. 
We  believe  that  a  distinction  is  necessary.  On  the  one  hand,  the  rational- 
ism of  the  French  codifiers  of  1804  cannot  be  denied.  They  were  all  adher- 
ents of  the  philosophy  of  the  1700  s,  which  dominated  the  Revolution.  Proof 
of  this  lies  also  in  the  fact  that  the  Civil  Code  accorded  so  little  place  to 
legal  custom,  by  which  we  mean  that,  under  the  Code,  law  has  but  one 
source,  legislation,  i.e.  the  conscious  will.  (Cf.  Pierre  Perrenet,  "La 
Coutume  et  le  Code  civil",  in  "Revue  critique  de  legislation",  June,  1906.) 
To  admit  that  custom  is  a  source  of  law,  would  have  been  to  recognize 
that  law  can  be  created  unconsciously  by  the  people,  a  principle  which  was 
not  at  all  in  favor  with  the  rationalists.  Nor  does  the  Civil  Code  of  1804 
give  recognition  to  the  decisions  of  the  courts,  whose  functions,  due  to  the 
evolutionistic  doctrine,  are  tending  to  exceed  the  proper  limits  of  judicial 
power. 

But,  with  regard  to  the  substance  itself  of  the  Code,  it  is  doubtless  true 
that  the  codifiers  of  1804  introduced  few  innovations.  The  reason  is 
simple.  There  was  no  great  need  for  change,  for  the  rules  governing  the 
affairs  of  private  life  already  existed  in  a  large  measure  in  the  French 
society  of  that  period.  The  codifiers  had  only  to  arrange  them  into  a 
code,  adding  such  new  provisions  as  were  rendered  necessary  by  the  new 
political  order  created  by  the  Revolution.  Moreover,  we  observed  above 
that  even  when  one  adheres  to  the  doctrine,  as  we  do,  that  the  legislator 
should  also  proceed  upon  a  rationalistic  basis,  his  creative  role  is  small  in 
the  sphere  of  private  law,  for  the  reasons  which  we  have  explained. 

2  The  principal  author  of  this  Code  was  Zeiller,  who  has  left  a  commen- 
tary upon  it :  "Commentar  fiber  das  allgemeine  bfirgerliche  Gesetzbuch" 
(1811-1813),  6  vols.  Cf.  on  Austrian  codification:  Stubenrauch,  "Com- 
mentar zum  allgemeine  oesterreichischen  burgerlichen  Gesetzbuche",  Vol. 
I,  "Einleitung:  1.  Zur  Geschichte  der  Codification  des  Civilrechtes  in 
Oesterreich  "  ;  ["  Festschrift  zur  Jahrhundertfeier  des  Allgemeinen  Burger- 
lichen  Gesetzbuches",  2  vols.,  Vienna,  1911.  —  Ed.]. 

275 


§  3]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

commerce,  which,  unable  to  expand  westward,  had  to  take  the 
Balkan  route.  The  "  General  Austrian  Civil  Code",  long  before 
Bismarck's  famous  words :  "  Drang  nach  Osten",  determined  the 
Austrian  path  of  expansion. 

The  Code  of  1811  was  in  fact  adopted  in  Serbia,  though  not 
completely.  It  was  abridged,  and  some  native  rules  were  incor- 
porated, relating  to  family  law  and  certain  national  institutions, 
such,  for  example,  as  the  "  zadruga  "  (undivided  family)  and  the 
priority  of  the  male  line  in  successions.  The  Austrian  Code 
brought  into  Serbia  the  property  conceptions  and  the  individualism 
of  the  Romans,  and  these  have  exercised  a  harmful  influence  upon 
the  "  zadruga",  which  is  based  upon  altogether  different  notions, 
i.e.  those  of  collective  ownership  and  solidarity  maintained  by  a 
life  in  common.  Through  the  Code  of  1844,  it  is  true,  Serbia 
entered  the  European  family,  but  by  the  same  act  she  lost  the 
chief  force,  economic  as  well  as  moral,  viz.  the  "  zadrugas",  through 
which  she  had  been  able,  during  four  centuries  of  Turkish  domina- 
tion, to  preserve  her  national  character.  From  1844  Serbia  has 
been  more  and  more  subject  to  the  influence  of  western  culture, 
more  drawn  towards  central  Europe.  This  has  been  the  cause  of 
those  agonizing  internal  derangements  which,  on  the  one  hand, 
forced  the  young  State  towards  her  racial  sister  Russia,  and  on  the 
other,  turned  her  toward  central  Europe,  to  which  she  was  now 
united  by  a  common  civil  law. 

The  Austrian  Code  is  also  in  force  in  Croatia,  Slavonia,  and 
Transylvania.  It  was  introduced  in  Hungary  at  the  same  time  as 
in  Croatia  and  Slavonia  (1852),  but  it  remained  operative  only  up 
to  1860,  when  national  Hungarian  law  was  restored.  The  codifica- 
tion of  Hungarian  private  law  was  undertaken  a  long  while  ago. 
In  1873  a  Government  commission  refused  to  accept  the  Austrian 
Code  for  Hungary.  Since  then  a  preliminary  draft  has  been 
accepted,1  and  a  commission  is  now  occupied  in  revising  the  project 
in  order  to  fix  upon  a  final  text.  The  draft  of  the  Hungarian  Code, 
though  profiting  by  different  foreign  codifications,  possesses  a 
fundamentally  national  character,  explainable  by  the  peculiar 
situation  of  the  Magyar  people.2  Surrounded  on  all  sides  by 
German,  Serbian,  and  Roumanian  nationalities,  it  finds  itself 
forced  to  give  a  national  stamp  to  all  that  it  does,  in  order  the 

1  Called,  "Magyar  altalanos  polgari  torvenykonyv  tervezete,  Els6 
szoveg",  i.e.  "Project  of  a  general  Hungarian  Civil  Code,  First  Draft." 

2  This  information  concerning  Hungarian  codification  we  owe  to 
Grosschmid  Beni,  Professor  of  Civil  Law,  University  of  Budapest. 

276 


CHAP.    VI]  FOUR   NATIONAL    CODES    CONTRASTED  [§  4 

better  to  combat  those  nationalities  for  the  preservation  of  its 
own. 

Lastly,  we  should  add  that,  prior  to  Italian  unity,  the  Austrian 
Civil  Code  had  likewise  been  adopted  in  the  Lombardo- Venetian 
kingdom,  which  at  that  time  had  fallen  under  the  sovereignty  of 
the  Austrian  Empire.1 

§  4.  The  German  Civil  Code.  —  We  now  come  to  the  German 
Civil  Code,  which,  from  the  point  of  view  of  the  influence  which  it 
may  have  upon  European  private  law,  may  be  placed  upon  the 
same  plane  as  Roman  law  and  the  French  Civil  Code.  This  influ- 
ence has  already  been  felt  in  countries  which  have  undertaken  to 
codify  their  private  law,  as,  for  example  Greece  2  and  Serbia,where 
the  German  Civil  Code  will  serve  as  the  basis  of  the  work.  To 
them  should  be  added  Switzerland,3  whose  code  of  1907  certainly 
must  have  felt  the  influence  of  the  German  Code.  Moreover, 
German  private  law  had  already  been  utilized  when  the  Swiss 
Federal  Code  of  Obligations  was  adopted  in  1881. 

We  should  mention,  too,  that  the  draft  of  the  Hungarian  Civil 
Code  was  also  subject  to  the  ascendency  of  the  German  Civil  Code, 
at  least  with  respect  to  method  and  form.  And  as  to  Austrian 
private  law,  there  are  writers,  like  Wellspacher,  who  are  putting 
forward  the  idea  that  it  should  be  studied  and  completed  with  the 
help  of  the  German  Civil  Code.4 

(1)  The  German  Civil  Code  in  France.  —  It  was  especially  in 
France  that  the  ideas  of  the  German  codifiers  won  ground.  The 
influence  of  German  private  law  had  long  made  itself  felt  upon  the 
French  mind.  It  was  a  good  sign  when  France,  after  a  long  period 
of  indifference,  nay  almost  disdain,  for  all  that  transpired  beyond 
her  borders,  realized  that  her  own  interests  as  well  as  those  of 
civilization  in  general  were  in  no  wise  in  accord  with  her  isola- 


1  Chironi,  "Livre  du  centenaire  du  Code  civil",  chapter  on  "Le  Code 
civil  et  son  influence  en  Italie",  p.  771:  "This  Code  was,  moreover,  a 
legislative  work  which  admittedly  revealed  profound  science  and  a  broad 
sense  of  equity.  We  may  even  say  that  in  many  of  its  parts,  especially 
those  relating  to  rights  over  things,  it  could  still  serve  as  a  model  to-day." 

The  Codes  of  the  Cantons  of  Aargau,  Bern,  Lucerne,  and  Solothurn, 
prior  to  Bluntschli's  labors,  were  allied  to  the  Austrian  Civil  Code;  cf. 
Planiol  ("Traite  elementaire  du  droit  civil",  Vol.  I,  p.  54).  Bluntschli's 
legislative  work  was  the  "Civil  Code  of  the  Canton  of  Zurich",  drafted 
by  him  and  put  into  operation  in  1855.  He  left  a  commentary  upon  his 
own  Code:  " Privatrechtliches  Gesetzbuch  fur  den  Kanton  Zurich  mit 
Erlauterungen",  cf.  Planiol,  ibid.,  Vol.  I,  p.  54. 

2  Planiol,  ibid.,  Vol.  I,  p.  52. 

3  The  drafter  of  the  Swiss  Civil  Code  was  Professor  Eugen  Huber. 

4  "Die  Zunkunft  des  oesterreichischen  Privatrechtswissenschaf t " 
(Vienna,  1907). 

277 


§  4]  PART    II      NATIONAL   CODIFICATION  [Chap.    VI 

tion,  and  opened  her  mind  to  the  scientific  influences  of  foreign 
countries. 

It  would  be  a  mistake  to  attribute  to  the  influence  of  the  German 
Civil  Code  the  sympathies  of  French  jurists  for  the  historical  and 
evolutionistic  school,  for  their  sympathy  began  considerably  prior 
to  the  German  Code.  It  dated  from  the  day  when  French  jurists, 
feeling  limited  by  their  own  Code,  which  had  come  to  appear  inade- 
quate to  meet  the  then  state  of  social  and  legal  relations  in  France, 
were  forced  to  appeal  to  the  historical  and  evolutionistic  method  to 
make  possible  the  solutions  of  the  difficulties  which  had  not  been 
anticipated  or  regulated  by  the  Code  of  1804.  Quite  naturally,  so 
soon  as  interest  centered  around  the  historical  and  evolutionistic 
school,  whose  native  soil  was  Germany,  French  authors  had  to 
consult  the  works  of  the  jurists  beyond  the  Rhine.  These  works 
opened  their  eyes  to  new  juridical  horizons.  The  traditional 
method  under  the  Napoleonic  Codes,  of  interpretation  by  syllo- 
gism, ignoring  legal  history  and  social  evolution,  came  to  seem 
worn  out  and  unscientific.  The  method  which  had  been  pursued 
in  the  study  of  the  German  common  law  prior  to  codification  at- 
tracted them,  and  led  them  to  introduce  more  philosophy  and 
deeper  historical  research  into  their  work. 

This  last  tendency  of  French  legal  investigation  inevitably 
increased  after  the  appearance  of  the  German  Civil  Code,  to  which 
French  jurists  proceeded  to  devote  a  degree  of  attention  which  did 
credit  to  their  catholicity  of  view.  The  drafters  of  the  German 
Code  had,  indeed,  gone  about  their  task  in  a  most  scientific 
way.  First  they  set  forth,  a  "general  part  ",x  those  principles 
common  to  all  the  institutions  of  private  law;  they  then  passed 
to  the  exposition  of  the  separate  private  rights,  which  they  placed 
in  a  "  special  part."  2  It  was  a  scientific  method,  because  it 
consists  in  discovering  and  assembling,  in  a  given  class  of  phe- 
nomena, the  characters  which  are  common  to  them  all,  causing 
1  hem  to  fall  into  the  same  category;  and  after  this  first  labor, 
in  describing  the  characteristics  by  which  each  of  these  phe- 
nomena is  distinguished  from  the  others.  The  first  is  a  work 
rather  of  philosophy;  the  second  is  one  of  description.  We 
may  say,  therefore,  that  the  "  general  part  "  of  the  German 
Civil  Code  is  the  philosophy  of  German  private  law,  and  that 

1  "General  Principles",  Arts.  1-240. 
Booh  II.  "L-iw  of  Obligations",  Arts.  241-853;   Book  III,  "Law  of 
Things",   Aris.  854    L296;    Hook  IV,  "Family  Law",  Arts.  1297-1921; 
Book  \,  "Law  of  [nheritance",  Arts.  1922-2:;s:>. 

278 


CHAP.    VI]  FOUR    NATIONAL    CODES   CONTRASTED  [§  4 

the  "  special  part  "  is  a  description  of  the  different  institutions  of 
that  law.1 

In  addition  to  this  first  effect  of  the  German  Civil  Code  upon 
its  French  interpreters,  —  that  is,  the  adoption  of  a  new  method 
in  French  legal  science,  —  the  German  Code  stimulated  a  study  of 
new  doctrines  in  France,  several  of  which  were  unknown.  Such, 
for  example,  are  the  protection  of  mere  physical  detention  of  a 
thing  through  possessory  defences,2  the  misuse  ("abus")  of  a  right 
("  sic  utere  tuo  ut  alienum  non  laedas  "),3  the  "  real  agreement",4 
the  land  charge  ; 5  the  hypothec  made  to  the  owner  ; 6  the  system  of 
German  land  registration  books,  so  different  from  that  of  the  French 
Civil  Code ;  the  unilateral  obligation ;  the  community  of  owner- 
ship,7 etc. 

1  The  draft  of  the  Hungarian  Code  contains  no  "general  part."  It  is 
divided  into  :  "Law  of  Persons",  Arts.  1-93  ;  "Family  Law",  Arts.  94-484  ; 
"Law  of  Things",  Arts.  485-913;  "Law  of  Obligations",  Arts.  914-1793; 
"Law  of  Inheritance",  Arts.  1794-2043. 

2  "Der  unmittelbare  Besitz."  Cf.  Saleilles,  "La  theorie  possessoire 
du  Code  civil  allemand",  in  "Revue  critique  de  legislation"  (1903),  p. 
592;  (1904),  p.  33;  id.,  "De  la  possession  des  meubles",  in  "Etudes  de 
droit  allemand  et  de  droit  francais." 

3  "Missbrauch  des  Rechtes."  French  literature  upon  the  misuse 
of  a  right  is  copious.  We  may  cite  the  following,  given  in  Ripert, 
"L'exercise  des  droits  et  la  responsabilite  civile",  in  "Revue  critique  de 
legislation"  (June,  1906):  Saleilles,  "De  l'abus  de  droit,"  in  "Bulletin 
de  la  Societe  d'etudes  legislatives"  (1905);  Josserand,  "De  l'abus  des 
droits"  (1905) ;  Max  Desserteaux,  "Abus  de  droit  et  conflits^de  droits", 
in  "Revue  trimestrielle  de  droit  civil"  (1900);  Planiol,  "Etude  sur  la 
responsabilite  civile",  in  "Revue  critique"  (1905,  1906);  Hauriou,  in 
Sirey  (1905):  Saleilles,  "Les  accidents  du  travail  et  la  responsabilite 
civile"  (1897);  id.,  Dalloz,  1897,  I,  p.  433;  Josserand,  "De  la  responsa- 
bilite du  fait  des  choses  inanimees"  (1897);  id.,  Dalloz,  1903,  II,  p. 
228 ;  1904,  II,  p.  257  ;  1905,  II,  p.  497  ;  Teissiere,  "  Essai  sur  le  fondement 
de  la  responsabilite  (1901)  ;  Germette  (thesis,  1903)  ;  De  Haene,  "Flandre 
judiciaire"  (1901);  Ripert  and  Teissiere,  "De  l'enrichissement  sans 
cause",  in  "Revue  critique"  (1899);  Ripert,  "De  l'exercise  du  droit  de 
propriete  "  (1902).  The  subject  has  also  been  treated  more  or  less  at  length 
in  the  commentaries  on  the  Civil  Code:  Baudry-Lacantinerie  and  L. 
Barde,  "Des  obligations",  Vol.  Ill,  p.  2,  pt.  1077;  Planiol,  "Traite  ele- 
mentaire  du  droit  civil",  Vol.  II,  p.  265. 

4  "Der  dingliche  Vertrag." 
B  "Grundschuld." 

6  "Hypotheca  in  re  propria." 

7  "Gesammte  Hand."  Cf.  L.  Josserand,  "Livre  du  centenairedu  Code 
civil",  chapter  on  "Essai  sur  la  propriete  collective",  p.  357.  We  must 
further  observe  that  —  speaking  only  of  family  law  —  the  influence  of 
German  civil  legislation  has  also  made  itself  felt  in  the  subject  of  investi- 
gation of  paternity.  Here  French  courts  have  striven  to  give  to  Art.  :!  10 
of  their  Civil  Code,  prohibiting  investigation,  a  broader  interpretation 
(Arts.  1705-1718  of  the  German  Civil  Code:  " Legal  Status  of  Illegitimate 
Children").  Similarly,  French  law  inclines  towards  the  German  Civil 
Code  as  regards  the  situation  of  the  married  woman.  Here  the  German 
Code  had  appreciably  improved  upon  the  status  of  the  French  woman. 
Cf.  E.  H.  Perreau,  "Chronique  legislative  du  droit  civil",  in  "Revue 
critique  de  legislation"  (May,  1906),  p.  303  ;  (Jan.),  pp.  45  et  seq. 

279 


§  4]  PART   II      NATIONAL    CODIFICATION  [Chap.    VI 

There  is  no  doubt  that  the  eagerness  with  which  French  scien- 
tists received  the  German  Civil  Code,  as  well  as  their  zeal  to  know 
it  and  to  penetrate  its  spirit,  exercised  a  strong  influence  upon 
the  French  plans  for  future  legislative  labors.1  Furthermore,  it  is 
no  less  certain  that  legislative  method,  a  problem  which  hardly 
interested  France  at  all  before  the  promulgation  of  the  German 
Civil  Code,  is  no  longer  neglected  in  France  ;  and  this  is  due  to  the 
influence  of  the  German  Civil  Code,  in  which  French  authors  are 
unanimous  in  recognizing  order  and  rigid  method.2  All  this,  we 
need  scarcely  say,  will  some  day  bring  about  beneficial  results  from 
the  point  of  view  of  the  unification  of  private  law  in  France  and  in 
Germany. 

And  an  evidence  of  the  influence  of  these  studies  in  bringing  to- 
gether the  scholars  of  both  countries  is  found  in  the  "  Book  of  the 
Centenary  of  the  Civil  Code",  where  German  jurists,  along  with 
French  jurists,  eagerly  celebrated  with  a  true  sincerity  the  fame 
of  a  work  which,  nevertheless,  had  reason  to  arouse  among  the 
former  the  memory  of  national  misfortunes  when  Napoleon  im- 
posed his  law  upon  Germany. 

(2)  Distinguishing  Principles  of  the  German  Code. — What  are 
the  fundamental  ideas  which  distinguish  the  German  from  the 
French  Code  ?  It  is  said  of  the  German  Code,  as  it  was  once  said 
of  the  French,  that  it  is  too  exclusively  a  code  of  property  rights, 
drafted  with  a  view  to  protecting  the  interests  of  the  well-to-do 
classes,  and  giving  too  little  place  to  the  modern  ideas  of  protection 
of  the  weak  and  of  social  solidarity.3  It  is  certain  that  the  German 
Civil  Code  does  not  differ  in  its  fundamental  principles  from  the 
French  Code.  The  reason  is  not  hard  to  discover.  German 
society  in  1896  was  constituted  very  nearly  like  the  French  society 
of  1804.  Property  and  liberty,  the  two  distinctive  characters  of 
the  Napoleonic  Code,  have  retained  the  same  importance  in  the 
Code  of  William  II.  For  a  hundred  years  the  individualistic  con- 
ception has  not  ceased  to  control  modern  society,  and  the  doctrine 
of  "  laisser  faire",  while  attacked  by  socialistic  ideas,  continues 

1  We  should  remark  here  that  it  is  a  much  debated  question  in  France 
whether  ;i  new  code  should  be  drafted,  or  whether  it  would  not  be  better 
to  amend  the  existing  Code  by  special  laws;  cf.  Larnaude,  "Livredu  cen- 
tenaire  du  code  civil",  chapter  on  "Le  Code  civil  et  la  necessite  de  la 
re\  ision",  |>.  901 ;  Marcel  Planiol,  ibid.,  "  Inutilite  d'une  revision  generate 
du  Code  ci\  LI",  p.  955. 

-  Kor  example,  (Ivmi,  ihiil.,  "La  technique  legislative  dans  la  codification 
civile  moderne",  p.  989. 

1  Si, Inn,  "  ( !omm unica l ion  au  Congres  du  droit  compare  de  1900",  p.  5, 
cited  by  Gaudemet,  "Livre  du  centenaire  du  Code  civil",  chapter  on  "Lea 
codifications  recentes  et  la  revision  du  Code  civil",  p.  967. 

280 


CHAP.    VI]  FOUR   NATIONAL    CODES   CONTRASTED  [§  4 

none  the  less  to  form  the  foundation  of  economic  relations.  The 
reason  is  that  social,  legal,  economic,  and  political  principles  do  not 
disappear  so  quickly.  They  die  hard.  But  we  should  not  com- 
plain of  this.  We  may  compare  them  to  a  fruit,  which  we  do  not 
throw  away  until  we  have  pressed  out  all  its  juice.  A  legal  princi- 
ple does  not  age  and  become  stale  until  it  has  ceased  to  serve  any 
purpose,  until  there  has  been  extracted  from  it  all  the  good  which 
it  contains.  It  is  only  after  a  principle  has  become  absolutely 
unproductive  that  it  is  replaced  by  another.  Now,  the  principle 
of  individualism  has  not  yet  reached  that  state  of  uselessness ;  it 
has  not  yet  yielded  up  all  its  benefits.  Designed  to  furnish  the 
world  the  greatest  wealth  possible,  it  must  endure  until  the  needs 
of  humanity  are  sufficiently  provided.  It  may  then  be  cast  aside 
and  the  principle  of  the  division  of  wealth  and  the  equal  distribu- 
tion of  property  be  substituted.  But  before  proceeding  to  dis- 
tribute, there  must  be  wherewith  to  distribute. 

And  yet  the  German  Code,  as  compared  to  the  French  Code, 
even  from  this  point  of  view,  marks  important  progress.  It  has 
been  unjustly  criticized  as  not  being  sufficiently  favorable  toward 
the  modern  idea  of  social  solidarity.  We  believe,  on  the  contrary, 
that  the  German  codifiers  recognized  this  conception  in  sufficient 
measure,  —  at  least  in  a  measure  suited  to  the  individualistic 
foundation  upon  which  their  work  was  to  be  based.  Article  226 
of  the  German  Civil  Code  does  restrain  the  power  of  the  possessor 
of  a  right  by  the  following  rule :  "  The  exercise  of  a  right  which 
can  only  have  the  purpose  of  causing  injury  to  another  is  unlaw- 
ful." *  Prior  to  the  German  Code  a  subjective  right  was  an 
unrestricted  authorization  ;  from  this  it  followed  that  the  possessor 
of  the  right  could,  in  his  exercise  of  it,  have  as  his  sole  purpose 
to  cause  injury  to  another.  Now  he  can  no  longer  do  so ;  the 
German  Civil  Code  commands  him  to  think  not  only  of  his  own 
interests  but  also  (and  we  have  just  seen  in  what  measure)  of  those 
of  his  fellow-men.  The  idea  is  certainly  opposed  to  the  individ- 
ualistic conception,  according  to  which  man  need  only  be  concerned 
with  his  own  interests,  egoism  being,  it  was  believed,  the  best  stim- 
ulus to  progress.  In  our  opinion,  Article  226  is  out  of  place  in  a 
code  of  private  law.  It  is  directed  against  the  idea  itself  of  private 
law,  just  as  the  socialist  idea  is  the  contrary  of  the  individualistic 
idea.  The  German  Civil  Code  is  a  legislative  work  which  adopts 
a  fundamental  principle  and  forthwith  proceeds  to  break  it  down. 

1  [Trans,  by  Wang,  London,  1907.]     Cf.  Jules  Gruber,  "Code  civil  pour 
l'Erapire  d'AUemagne,  avee  la  loi  d'introduction",  p.  57. 

281 


§  4]  PART    II      NATIONAL    CODCFICATION  [Chap.    VI 

Another  criticism  has  been  made  of  the  German  Code.  Though 
more  learned  and  more  imbued  than  other  codes  with  the  spirit  of 
logic,  it  is  represented  as  running  the  danger  of  arresting  future 
efforts  in  practical  or  theoretic  legal  development.1  From  this 
point  of  view,  the  French  Civil  Code  is  said  2  to  be  superior  to  the 
German ;  it  leaves  greater  room  to  free  interpretation  of  the  judge. 
But  it  is  the  Swiss  Civil  Code  of  1907  which  may  best  be  cited  as 
model  legislation.  It  has  respected  the  theory  that  a  civil  code 
should  not,  by  casuistry  and  enslavement  of  the  judge,  prevent  the 
latter  from  bringing  it,  at  need,  into  unison  with  the  leading  ideas 
of  the  time,  or  from  maintaining  it,  as  it  were,  abreast  with  social 
evolution. 

(3)  The  Judicial  Function  under  the  German,  Swiss,  and  French 
Codes.  —  Without  stopping  to  examine  a  theory  lying  outside  our 
inquiry,  we  shall  limit  ourselves  to  a  brief  explanation  of  the  differ- 
ence in  this  regard  between  the  German  and  the  Swiss  Civil  Codes, 
and  the  French  Civil  Code. 

To  draft  a  civil  code  which  (like  the  Swiss  Code)  will  give  the 
judge  elbow-room  among  the  legal  rules  at  his  disposal  and  will 
enable  him  thus  to  follow,  in  applying  the  principles  of  the  code, 
the  mutations  and  vicissitudes  of  the  legal  life  of  the  people,  is 
evidently  to  support  the  doctrine  that  the  regulation  of  the  rela- 
tions of  private  law  does  not  fall  solely  to  the  legislative  body  (that 
is,  to  men  who,  in  their  task  of  law-making,  necessarily  proceed  in  a 
rationalistic  manner) ;  and  that  this  regulation  should  be  primarily 
the  result  of  slow  juridical  evolution  in  the  masses  of  the  people. 
Now,  in  our  opinion,  that  doctrine  is  precisely  what  the  strongly 
conservative  German  mind  does  not  comprehend,  and  for  that 
reason  is  unwilling  to  admit.  It  does  not  believe  that  juridical 
rules  are  the  work  of  the  people,  because  that  is  a  primarily  demo- 
cratic, not  to  say  revolutionary  principle.  The  German  mind  does 
not  conceive  that  the  direction  of  the  State  belongs  to  the  nation 
at  large.  According  to  the  German  conception,  the  nation,  acting 
as  it  does  by  sentiment  rather  than  reason,  cannot  conduct  the 
affairs  •>!'  State  as  intelligently  as  highly  cultured  individuals  whom 
calm  intellectual  effort  guarantees  against  impulses  to  which  the 
individual  is  liable,  when  acting  as  part  of  the  mass  of  the  nation. 

Consequent  ly,  the  German  Code  has  come  (at  least  so  we  believe) 

1  Cf.  Gaudemet,  "Livre  du  centenaire  du  Code  civil",  chapter  on  "Les 
codifications  recentes  et  la  revision  du  Code  civil",  p.  972  [post,  Chap. 
VII];  Saleilles,  "Introduction  a  l'l'tuilc  du    droit  civil  allemand",  pp.  88 
et  aeq. .  Gierke,  "  Entwurf",  pp.  58  et  seq.,  cited  by  Gaudemet,  op.  cit. 
Gaudemet,  op.  cit.,  p.  972. 

282 


CHAP.    VI]  FOUR   NATIONAL    CODES   CONTRASTED  [§  5 

as  a  reaction  against  the  French  Code,  which,  being  a  product  of  the 
Revolution,  propagated  its  principle  :  "  Everything  by  the  people." 
The  German  Civil  Code  attempts,  in  this  regard,  a  counter  move- 
ment in  favor  of  the  contrary  principle,  "  Everything  by  conscious 
and  enlightened  reason."  It  admits,  indeed,  the  idea  of  social 
solidarity  (we  have  just  seen  that  such  is  the  sense  of  the  rule  of  the 
abusive  exercise  of  a  right,  Art.  226),  but  it  does  not  grant  that  that 
idea,  any  more  than  the  other  leading  ideas,  might  be  the  work 
of  the  unconscious  masses  of  the  people  rather  than  of  the  intel- 
lectual class.  The  German  intellectuals  are  favorably  disposed  to 
do  much,  even  to  do  all,  "  for  the  people",  but  they  think  that  they 
must  proceed  after  the  manner  of  a  guardian  :  everything  for  the 
minor,  but  nothing  by  him. 

The  future  will  show  whether  the  German  mind,  as  we  have  just 
described  it,  is  to  convince  the  world  and  dominate  it,  —  at  least 
to  the  same  degree  as  the  French  Civil  Code.  Perhaps  the  history 
of  humanity  is  nothing  more  than  the  successive  ascendency  of 
thoss  two  contrary  principles :  that  of  the  unconscious  (matter) : 
and  that  of  the  conscious  (mind). 

§  5.  The  Swiss  Civil  Code.  — The  latest  codification,  chronologi- 
cally, is  that  of  Switzerland,  of  1907,  the  merits  of  which  we  can 
not  here  enter  into.  It  was  carried  out  under  the  influence  of  the 
German  Code.  "  As  examples  of  theories  having  a  German  origin 
in  the  draft  of  1904,"  l  wrote  Gaudemet,2  "  we  may  mention  com- 
munity of  property  ('  gesammte  Hand',  Arts.  646-648)  and  the 
hypothec,  conceived  as  a  principal  and  not  an  accessory  right 
('  selbstandige  Hypothek  ')." 

But  the  Swiss  Civil  Code  also  has  its  points  of  originality.  We 
shall  mention  but  two,  which  are  typical  of  the  ideas  which  the 
Swiss  codifiers  held  upon  the  functions  of  the  judge  and  upon  the 
nature  of  subjective  private  right : 

(1)  Article  1,  paragraphs  2  and  3,  declares  :  "  Where  no  legisla- 
tive provision  is  applicable,  the  judge  shall  decide  according  to  cus- 
tomary law,  and  where  there  is  no  custom,  according  to  the  rules 

1  "Livre  du  centenaire  du  Code  civil",  chapter  on  "Les  codifications 
reeentes  et  la  revision  du  Code  civil",  p.  970,  note  1,  [infra.  Chap.  VII]. 

2  At  the  time  of  Gaudemet's  article,  the  Swiss  Civil  Code  was  but  a  draft . 
That  author  continues :  "We  know  how  much  the  authors  of  the  Federal 
Code  of  Obligations  thought  wrell  to  draw  in  1881  from  German  doctrines." 
He  then  adds  :  "  It  may  be  foreseen  that  after  the  announced  revision,  the 
new  Code  of  Obligations  will  retain  the  same  character  as  the  present." 
The  Commission  of  revision,  convened  at  Langenthal.  again  borrowed 
from  German  law,  introducing,  for  example,  the  "reprise  de  dette";  cf. 
"Journal  de  Geneve"  (Oct.  4  and  9,  1904). 

283 


§  5]  PART    II      NATIONAL    CODIFICATION  [Chap.    VI 

which  he  would  establish  were  he  acting  as  legislator."  "  He  shall 
draw  from  the  settled  rules  of  writers  and  of  the  courts."  *  As  is 
evident,  the  Swiss  Civil  Code  confers  upon  the  judge  a  very  much 
more  important  and  a  different  power  than  that  given  him  by  the 
German  Civil  Code.  In  the  Swiss  Code,  the  judge  is  elevated  to  a 
legislator  whenever  a  statutory  provision  or  custom  is  lacking  by 
which  the  particular  case  can  be  determined.  No  need  to  doubt 
but  that  the  Swiss  judge  will  soon  take  to  himself  a  similar  power 
in  the  case  of  an  obscure  or  faulty  law.  In  place  of  inquiring  into 
the  meaning  of  an  ambiguous  text,  it  will  be  easier  for  him  to 
create  a  new  rule.  Now,  since  it  is  a  current  doctrine  that  the 
legislator  should  not  proceed  by  the  exercise  of  his  reason,  but 
should  reflect  jural  life  as  it  appears  in  the  people  at  the  time  of  the 
making  of  the  law,  the  rule  of  paragraph  2,  of  Article  1  of  the  Swiss 
Code  (by  which  the  judge  must,  if  the  conditions  required  be  ful- 
filled, decide  according  to  the  rules  which  he  would  establish  were 
he  legislating)  would  seem  to  indicate  the  adoption  by  the  Swiss 
codifiers  of  the  new  method  of  judicial  interpretation,  known  as 
the  evolutionistic  method.  We  are  strengthened  in  our  conviction 
by  the  acceptance  by  the  Swiss  Civil  Code  of  custom  as  a  source  of 
law,  a  doctrine  also  based  upon  the  evolutionistic  idea.  Briefly,  the 
Swiss  Civil  Code  regards  the  law  as  a  result  of  social  evolution 
rather  than  as  a  rational  creation  of  the  human  mind.  This  is  a 
conception  quite  different  from  that  which  we  saw  present  in  the 
mind  of  the  German  law-maker.  It  is,  moreover,  quite  natural  in 
a  republic,  for  republics  are  founded  on  the  principle  that  the  State 
should  follow  the  route  traced  by  the  people.  The  evolutionistic 
idea  is  nothing  more  than  this  principle  applied  to  social  phenomena. 

But  it  must  be  admitted  that  paragraph  2,  Article  1,  of  the  Swiss 
Civil  Code  creates  no  obstacle  to  the  application  of  the  rationalis- 
tic idea.  By  virtue  of  this  rule,  a  Swiss  judge  may,  in  fact,  supply 
an  omission  of  the  Code  in  a  rationalistic  manner,  by  maintaining 
that  that  would  be  the  way  he  would  proceed  were  he  acting  as 
legislator.  Paragraph  2,  Article  1,  would  thus  be  a  two-edged 
sword. 

(2)  As  to  the  theory  of  the  misuse  ("  abus  ")  of  a  right,  adopted 
by  Article  226  of  the  German  Civil  Code,  with  the  limitations  we 
have  already  seen,  the  Swiss  Code,  following  the  German  law,  has 
given  it  a  yet  larger  scope.     This  is  evident  from  Article  2  of  the 

1  [The  Swiss  Civil  Code  has  been  translated  by  R  ihcrt  P.  Schick  for  the 
Comparative  Law  Bureau  of  the  American  Bar  Association  (Boston,  1915). 
The  present  translator  has  however  used  his  own  translation.  —  Transl.J 

284 


CHAP.    VI]  FOUR   NATIONAL   CODES   CONTRASTED  [§  5 

Swiss  Code :  "  Each  person  must  exercise  his  rights  and  discharge 
his  obligations  in  good  faith.  The  manifest  misuse  of  a  right  is  not 
protected  by  law."  Consequently  Gaudemet  was  right  in  affirm- 
ing that  the  draft  of  the  Swiss  Code  then  marked  the  highest 
point  to  which  "  the  socialization  of  civil  law  "  could  attain  in  posi- 
tive legislation.  Similarly,  there  is  no  reason  for  surprise  that 
Anton  Menger,  notable  for  his  criticism  of  the  German  Civil 
Code  as  merely  a  code  of  property  rights,  is,  on  the  whole, 
satisfied  with  the  Swiss  code,  "  designed  for  a  purely  democratic 
republic."  1 

1  A.  Menger,  "Das  biirgerliche  Gesetzbuch  und  die  besitzlosen  Volks- 
elassen"  (3d  ed.),  preface,  pp.  vi-vii. 


285 


§1] 


PART   II      NATIONAL    CODIFICATION  [Chap.    VII 


Chapter  VII 

A  CENTURY'S  PROGRESS  IN  RESHAPING  THE  LAW; 
THE  GERMAN  AND  THE  SWISS  CODES,  COMPARED 
WITH   THE   FRENCH   CODE 

By  Eugene  Gaudemet1 


§1- 


§2. 


§3. 

§4. 

§5. 


The  Problem  of  Revision ; 
Value  of  Germany  and 
Switzerland  as  Examples. 

Napoleonic  Code;    Criticisms 
of  Theory : 
(1)      Obsolete      Doctrines. 

(2)  New    Legal    Theories. 

(3)  Scientific  Arrangement. 
Economic     and     Sociological 

Criticisms. 

The  Same ;   Class  Legislation. 

The  Same ;    Old  Concepts  of 

Liberty  and  Equality : 

(1)  The  Effects  of  Solidarity. 

(2)  Admission  of  New 


Principles  through  New 
Texts.  (3)  Admission 
of  Principles  without 
any  Foundation  in  the 
Texts.  (4)  Changes 

Requiring  Legislation. 

§  6.  Criticism  of  Specific  Provi- 
sions : 
(1)  The  Married  Woman. 
(2)  Protection  of  Chil- 
dren. (3)  Illegitimate 
Children.  (4)  Suc- 
cession. (5)  Property. 
(6)  Contracts. 

§  7.     Conclusion. 


§  1.  The  Problem  of  Code  Revision.  —  Between  a  law,  however 
well  drafted,  and  the  social  surroundings  in  which  it  is  applied,  we 
seldom  find  an  absolutely  perfect  and  complete  adjustment.  A 
law  is  naturally  simple  and  fixed  ;  its  social  surroundings  are  com- 
plex and  variable.  The  text  will  necessarily  appear  at  times  either 
unresponsive  and  ill  suited  to  the  special  situations  unforeseen  by 

1  [This  Chapter  represents  the  author's  essay  entitled  "Les  Codifica- 
tions recentes  et  la  revision  du  Code  Civil",  in  the  volume  "  Le  Code  Civil : 
Livre  du  Centenaire"  (Paris,  1904),  —  a  work  of  composite  authorship, 
edited  by  Albert  Sorel  for  the  Societe  des  Etudes  Legislatives  of  Paris,  in 
celebration  of  the  Centenary  of  the  Code  Napoleon. 

Tho  author  is  professor  in  the  Faculty  of  Law  at  the  Univorsity  of 
Dijon.  Otlur  works  of  his  are:  "Etude  sur  le  transport  de  dettes  a 
titrc  partieulier"  (1898);  "L'Abbe*  (Jaliani  et  la  question  du  commerce 
des  blfis  a  la  fin  du  regno  do  Louis  XV"  (1899). 

At  I  he  I  [me  of  original  publicat  ion  of  this  Chapter,  the  draft  Swiss  Civil 
Code  had  not  been  enacted  ;  Hie  translator's  skill  and  labor  have  added  in 
parenthesis  the  citations  to  the  Code  sections  as  enacted  and  have  sub- 
stituted the  text  of  (he  enactment  for  tho  text  of  the  draft  where  articles 
are  quoted;  his  own  translation  has  invariably  been  made.  The 
author's  comments  are  not  affected  by  the  slight  changes  mado  in  the 
enactment  ;  the  Editorial  Committee  was  notified  by  him  that  the  inser- 
tion of  tho  above  citations  would  suffice.  — -  En.J 

286 


CHAP.   VI I]  OLD   AND   NEW   CODES   CONTRASTED  [§  1 

the  legislator,  or,  if  the  law  is  old,  as  inspired  by  obsolete  and  anti- 
quated ideas.  The  best  laws  do  not  escape  this  rule;  to  prove 
them  subject  to  it  is  not  a  sufficient  reason  to  condemn  them. 

Furthermore,  we  have  a  remedy  for  such  inevitable  defects. 
Experience  has  taught  how  the  interpretation  of  inadequate  or 
antiquated  texts,  by  text-writers  and  courts,  can  fill  the  insuf- 
ficiencies of  the  written  rules  and  sometimes  breathe  new  life  into 
superannuated  regulations.  One  of  the  most  important  results 
attained  by  French  legal  science  in  the  last  ten  years  has  been  the 
recognition  of  the  justification  of  this  method  and  the  determina- 
tion of  its  rules.1  And  there  are  other  countries  where  the  same 
ideas  seem  to  have  now  received  official  acknowledgment.2 

We  must  bear  all  this  in  mind  when  we  consider  the  question  of 
the  revision  of  the  Civil  Code  in  France.  It  is  not  enough,  when 
we  declare  a  complete  recasting  of  our  legislation  necessary,  merely 
to  show  its  omissions  or  to  mark  the  disunion  between  the  juridical 
conceptions  of  1804  and  those  of  the  early  1900  s.  That  is  an  easy 
task,  warranting  no  such  conclusion.  Reduced  to  its  true  terms, 
the  problem  consists  in  inquiring  whether  the  actual  want  of  bal- 
ance between  the  Code  and  present  social  and  scientific  conditions 
is  such  that  the  combined  effort  of  authors  and  courts  is  powerless 
to  rectify  it,  and  that  an  appeal  to  legislative  reform  is  inevitable. 
Assuming  that  such  legislative  action  might  be  effective  and  timely, 
it  may,  nevertheless,  admit  of  numerous  degrees  of  consummation, 
as  :  complete  recasting,  partial  revision  limited  to  certain  subjects, 
or  the  enactment  of  special  laws  unincorporated  into  the  Code. 

In  this  very  brief  space  we  cannot  examine  the  problem,  as 
presented,  in  all  its  complexity.  We  desire  only  to  point  out 
matters  in  aid  of  a  solution  which  the  examination  of  foreign  law  is 
able  to  furnish.  The  comparative  method  in  law  holds  an  ac- 
cepted place  to-day  among  juridical  methods.  It  does  not  seem, 
however,  that  any  one  has  so  far  thought  of  applying  it  to  the 
present   problem.     Attention   has   been  drawn   to   the   contrast 

1  Geny,  "Methode  d'interpretation  et  sources  en  droit  positif." 

2  Draft,  Swiss  Civil  Code,  Art.  1,  pars.  2,  3  :  ["  If  no  text  of  the  law  applies, 
the  judge  shall  decide  according  to  customary  law,  and,  in  the  absence  of 
any  customary  law,  according  to  the  rules  of  law  settled  by  the  text  writers 
and  the  courts.  If  there  is  no  recourse  to  any  one  of  these  sources,  he 
shall  apply  the  rule  which  he  would  establish  if  he  were  acting  as  legisla- 
tor." This  provision  reappears  with  almost  no  change  as  Art.  1.  par.  2 
of  the  Code,  adopted  Dec.  10,  1907,  in  force  since  Jan.  1.  1912.  The 
German  Civil  Code  in  its  final  form  did  not  retain  the  provisions  of  the 
draft  regarding  method.  As  to  the  present  state  of  the  problem  in  Ger- 
many, cf.  Saleilles,  "Introduction  a  l'fitude  du  droit  civil  allemand", 
88  et  seq.  —  Transl.] 

287 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

between  the  social  tendencies  of  to-day  and  the  individualism  of 
1804 ;  the  Code  has  been  set  up  in  opposition  to  the  "  new  law  " ; L 
the  effort,  which  becomes  ever  more  pronounced,  toward  the 
"  socialization  of  law  ",2  or  toward  the  "  infusion  of  socialism  into 
private  law  ",3  has  been  pointed  out.  And  from  all  this,  we  are 
asked  to  conclude  the  necessity  of  an  entire  reform  of  the 
French  Civil  Code,  of  a  complete  and  radical  revision  that  would 
establish,  or  at  least  prepare,  the  way  for  a  true  social  transform- 
ation.4 

If  weighed  in  the  light  of  the  most  recent  foreign  codifications, 
such  a  conclusion  would  seem  rather  illusory  and  hazardous.  The 
countries  neighboring  to  France,  where  jural  and  social  surround- 
ings are  sensibly  the  same,  have  recently  been  elaborating  a  civil 
legislation,  which  we  may  observe;  and  the  mediocre  results  of 
these  efforts  show  conclusively  to  what  extent  the  new  Codes  may, 
without  revolution  and  upheaval,  satisfy  the  legitimate  aspirations 
which  manifest  themselves  to-day.  And,  when  we  compare  the 
foreign  texts  with  the  French  Code  —  not  as  in  1804,  but  as  under- 
stood to-day  after  a  century  of  study  and  application — we  observe 
that,  in  order  to  secure  for  it  the  benefit  of  all  the  positive  gains  of 
foreign  law,  a  few  changes  in  detail  will  suffice,  —  unpretentious, 
easily  reconciled  with  the  present  texts  and  very  often  prepared 
long  ago  by  text-writers  and  courts.  To  exceed  this  would  be  to 
go  beyond  the  facts  of  experience,  to  anticipate  the  results  of  a 
true  revolution,  and  to  create  a  work  condemned  in  advance  to 
failure,  since  it  would  be  opposed  to  contemporary  juridical  senti- 
ment. 

Value  of  Germany  and  Switzerland  as  Examples.  —  In  this  respect 
two  documents  are  of  particular  value :  the  German  Civil  Code 
of  1900,  and  the  Draft  of  the  Swiss  Civil  Code,  as  presented  by  the 

1  Maxime  Leroy,  "Le  Code  civil  et  le  Droit  nouveau"  (1904);  "Le 
Centenaire  du  Code  Civil",  in  "Revue  de  Paris"  (1903). 

2  Charmont,  "La  socialisation  du  Droit",  in  "Revue  de  metaphysique 
et  de  morale"  (1903). 

3  Vivante,  "L'influenza  del  socialismo  sul  diritto  privato"  (inaugural 
address,  Univ.  of  Rome,  1902). 

1  As  indicating  the  tendencies  of  French  scientific  socialism,  cf.  Andler, 
Introduction  to  the  translation  of  the  two  works  of  Anton  Menger,  "Le 
Droit  au  produit  integral  du  travail"  (1900),  and  "L'fitat  socialiste" 
(1904).  Upon  the  Italian  Code,  the  governing  ideas  of  which  are  the 
same  as  of  the  French  Code,  cf.  the  very  pointed  criticism  of  Salvioli,  "I 
difetti  sociali  del  Codice  civile  in  relatione  alle  classi  non  abbienti  ed 
operaie"  (inaugural  address,  Univ.  of  Palermo,  1890).  Also,  the  more 
moderate  criticism  of  Cavagnari,  "II  Codice  civile  e  la  questione  sociale", 
which  prefers  ;i  progressive  reform  by  special  laws  (app.  IV  to  his  "Nuovi 
orizzonti  del  diritto  civile",  pp.  421  et  seq.) ;  and  by  the  same  author,  "I 
fossili  e  le  lacune  del  Codice  civile",  ibid.,  app.  111. 

288 


CHAP.    VII]  OLD   AND    NEW    CODES    CONTRASTED  [§  1 

Federal  Council  to  the  Federal  Assembly.1  From  our  particular 
point  of  view,  however,  they  are  of  unequal  importance.  The 
German  Code,  a  masterpiece  of  method  and  science,  appears  as  the 
superb  epitome  of  all  the  results  which  German  text-writers  ob- 
tained during  the  1800  s  in  the  field  of  the  "  Pandects  "  or  German 
private  law.2  But  many  of  its  expositors  are  of  the  opinion  that, 
from  the  social  point  of  view,  it  does  not  answer  all  the  require- 
ments of  a  democratic  environment.  It  has  been  said  of  the 
German,  as  of  the  French  Code,  that  it  is  too  exclusively  a  "  Code 
for  the  well-to-do  ",3  drafted  with  the  intention  of  protecting  the 
propertied  classes  and  giving  too  little  space  to  the  modern  ideas 
of  the  protection  of  the  weak  and  of  social  solidarity.4  Immedi- 
ately upon  the  draft's  appearance,  Anton  Menger  published  some 
severe  and  perhaps  excessive  criticisms  in  this  regard,  which  at- 
tracted wide  attention.5  But  even  those  who  reject,  as  we  do,  the 
Viennese  professor's  principles  of  social  philosophy  6  will  no  doubt 
regret  that  the  German  legislators  did  not  in  larger  measure  heed 
his  observations. 

Quite  different  is  the  Swiss  Draft.  Though  inspired  by  German 
science,7  it  has  remained  very  simple  in  technique ;  it  has  carefully 
avoided  doctrinal  subtleties ;    in  a  thoroughly  practical  spirit  it 

1  May  28,  1904. 

2  Saleilles,  "Introduction  a  l'etude  du  droit  civil  allemand"  (1904), 
pp.  104  et  seq. 

3  Sohm,  "Communication  au  Congres  de  Droit  compare  de  1900",  p.  5. 

4  Saleilles,  op.  cit.,  p.  120.  For  an  example  of  the  obsolete  character  of 
the  theory  in  the  German  Civil  Code  regarding  liability  for  tort,  cf.  Saleilles, 
"Essai  d'une  theorie  generale  de  l'obligation  d'apres  le  premier  projet  du 
Code  civil  pour  l'Empire  d'Allemagne"  (2d  ed.). 

5  "Das  burgetiiche  Recht  und  die  besitzlosen  Volksklassen"  (1st  ed., 
1890;  3d  ed.,  1904).  Cf.  particularly  pref.  (3d  ed.),  p.  vi :  "As  the 
creation  of  an  aristocratic  military  State,  whose  armies  have  been  every- 
where victorious  during  the  past  generation,  the  Civil  Code  possesses  a 
truly  conservative  character ;  in  hardly  any  code  of  recent  times  have  the 
ruling  and  propertied  classes  so  thoroughly  asserted  the  position  of  power 
which  they  now  civilly  enjoy,  as  in  this  one." 

6  A  clear  and  vigorous  synthesis  of  it  is  found  in  Menger 's  last  work, 
"L'Etat  socialiste"  (Fr.  trans,  by  Milhaud,  1904). 

7  We  know  to  what  extent  the  drafters  of  the  Federal  Code  of  Obliga- 
tions took  advantage,  in  1881,  of  German  doctrines.  As  an  example  of 
theories  of  German  origin  contained  in  the  Draft  of  1904,  we  may  cite  the 
joint  ownership  ("gesammte  Hand")  of  Arts.  646-648  [Civ.  C.  652-654, 
Transl.],  and  the  mortgage,  here  treated  as  the  primary  (not  subsidiary) 
right  ("selbstandige  Hypothek"  or  "independent  mortgage");  cf. 
Message  du  Conseil  Federal,  May  28,  1904,  p.  9.  It  is  to  be  foreseen 
that  in  the  projected  revision  the  new  Code  of  Obligations  mil  preserve 
the  same  character  as  the  present  Code.  The  Commission  of  revision,  at 
a  recent  meeting  at  Langenthal,  has  again  taken  from  the  German  law  of 
obligations ;  for  instance,  by  introducing  the  contract  to  pay  the  debt  of  a 
third  party  ("reprise  de  dette") ;  cf.  "Journal  de  Geneve"  (Oct.  4  and  9, 
1904). 

289 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

has  avoided  any  ambition  as  to  general  arrangement  or  detail  of 
style.  By  its  clearness  and  simplicity,  therefore,  it  has  so  far  as 
possible  realized  in  its  form  the  ideal  of  democratic  legislation. 
This  it  has  also  attained  from  another  point  of  view.  Its  authors 
succeeded,  with  great  breadth  of  mind  and  wise  moderation,  in 
achieving,  among  the  reforms  demanded  to-day,  all  those  which  are 
practicable  without  being  carried  away  by  Utopian  dreams.  The 
Swiss  Draft  may  be  said  to  mark  to-day  the  farthest  point  attain- 
able by  positive  legislation  in  the  socialization  of  civil  law.  And 
Menger,  who  was  so  severe  in  his  criticism  of  the  German  Code,  is 
not  far  from  recognizing  this  himself  when  he  observes  that  the  Pre- 
liminary Draft  of  1900-1901,  "  intended  for  a  purely  democratic 
republic",  has  largely  applied  the  ideas  for  which  he  contended.1 

Evidently,  then,  the  Swiss  Draft  is  of  still  greater  interest  to  us 
than  the  German  Code.  To  it  we  prefer  to  turn  in  endeavoring  to 
measure  the  distance  separating  the  French  Code  from  those 
legal  systems  most  imbued  with  the  modern  spirit. 

In  our  examination  we  must  proceed  from  two  different  points 
of  view.  We  must  distinguish  among  the  underlying  principles 
of  the  Code  those  of  a  theoretic  or  doctrinal  order  from  those  per- 
taining to  economic  and  social  organization.  The  question  of  the 
reasonableness  and  the  extent  of  the  revision  arises  in  the  one  case 
as  in  the  other ;  but  it  may  be  differently  answered  according  as 
we  study  it  from  one  or  the  other  aspect.  It  is  of  this  two-fold 
inquiry  that  we  would  give  a  very  brief  summary. 

§  2.  Code  Napoleon ;  Criticisms  of  Theory.  —  First,  then,  from 
the  scientific  point  of  view,  the  defects  of  the  Code  Napoleon  can 
hardly  be  denied.  It  would  no  longer  be  of  interest  to  criticize  the 
arrangement  of  its  materials.  We  must  also  recognize  that  many 
theories  which  before  1804  constituted  the  bases  of  legal  education 
are  now  abandoned  or  at  least  questioned.  We  no  longer  conceive 
in  the  same  manner  as  did  the  drafters  of  the  Code  either  civil 
liability,  rights  "in  rem",  rights  "in  personam",  or  perhaps  even 
rights  in  the  broadest  sense;  for  the  principle  of  the  misuse  of  a 
right,  now  more  and  more  generally  accepted,  implies  the  rejection 
of  the  maxim:  "Neminem  laedit  qui  suo  jure  utitur,"  and  as- 
sumes,  therefore,  a  profound  modification  of  the  idea  of  right  itself. 
Ami  lastly,  our  Code  of  1804  contains  no  provision  upon  a  great 
number  of  modern  doctrines  which  have  found  place  in  foreign 
legislations.     Suffice  to  mention  here  the  obligation  arising  from  a 

l"Das  biirgerliche  Gesetzbuch  und  die  besitzlosen  Volksklassen ", 
pref.  (3d  ed.),  pp.  vi-vii. 

290 


CHAP.    VII]  OLD    AND    NEW    CODES   CONTRASTED  [§  2 

unilateral  declaration  of  intention,  the  contract  to  pay  the  debt  of  a 
third  party,  joint  ownership,  and  many  other  judicial  conceptions 
well  known  to  modern  writers,  but  of  which  no  traces  are  found  in 
our  Code.  Upon  all  these  points  the  contrast  is  absolute  between 
the  French  work  and  the  German  Code  with  its  rigid  arrangement, 
its  perfect  technique,  its  sound  dogmatic  value.1 

From  this  scientific  defect  should  we  conclude  the  necessity  of  a 
complete  revision?  Nothing  would  be  more  questionable.  A 
code  is  not,  in  fact,  the  work  of  theory.  Its  function  is  not  to 
co-ordinate,  according  to  a  fixed  plan,  formulae  that  have  been 
elaborated  in  the  works  of  theoricians,  nor  to  construct  systems  in 
a  learned  manner  by  logical  deduction.  It  must  primarily  offer 
to  the  practice  of  laAv  clear  and  precise  solutions  which  shall  guide 
and  never  hamper  the  courts.  Now,  such  an  end  can  be  reached, 
even  by  texts  that  do  not  exactly  reflect  the  latest  scientific  ideas, 
even  by  codes  whose  general  arrangement  is  open  to  criticism ;  such 
is  precisely  the  case  with  the  French  Code. 

Let  us  take  up  the  three  angles  of  criticisms  which  we  enumer- 
ated ;  we  shall  see  that  none  of  the  defects  pointed  out  need 
prevent  the  Code  Napoleon  from  still  fulfilling  its  essential  function. 

(1)  Obsolete  Doctrines.  —  In  the  first  place,  it  is  very  certain  that 
there  exists  a  breach  between  the  juridical  conceptions  of  the 
drafters  of  the  Code  and  the  ideas  now  more  and  more  generally 
received  by  text-writers.  That,  however,  in  no  way  impedes  the 
free  development  of  legal  science  and  practice.  Indeed,  the  ex- 
pounder of  the  law  is  not  bound  by  the  doctrinal  ideas  of  the  legis- 
lator; alone  the  positive  provisions  of  express  texts  bind  him. 
And  precisely  one  of  the  greatest  merits  of  the  Civil  Code,  often 
pointed  out,  is  that  it  is  extremely  sparing  of  theoretic  definitions, 
and  that  it  has  carefully  avoided  all  doctrinal  principles.  This 
quality,  which  it  has  in  common  with  the  Draft  of  the  Swiss  Code, 
lends  it  an  extreme  flexibility  and  permits  it  to  adapt  itself  without 
difficulty  to  scientific  progress. 

Our  Code  is  perhaps  even  superior  to  the  German  in  this  respect. 
The  latter,  more  learned,  more  imbued  with  the  spirit  of  logical 
construction,  incurs  more  than  ours  the  risk  of  arresting  the  force 
of  the  future  development  of  the  theory  and  practice  of  law.  It  is 
to  be  feared  that,  temporarily  at  least,  the  efforts  of  the  com- 
mentators stop  short  at  pure  exegesis ;  indeed,  in  spite  of  the  very 
broad  rules  of  application  laid  down  since  the  promulgation  of  the 

1  Saleilles,  "Introduction  a  l'etude  du  droit  civil  allcmand",  pp.  104 
et  seq. 

291 


§  2]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

Code  by  several  German  jurists,1  it  would  seem,  from  a  perusal  of 
the  legal  reviews  and  recent  commentaries,  that  German  science  has 
somewhat  altered  its  direction.  It  is  also  to  be  feared,  according 
to  the  felicitous  expression  of  Saleilles,  that  "  if  a  bold  system  of 
interpretation  be  not  created  which  may  break  through  the 
exceedingly  compact  arrangement  of  the  whole  Code,  there  may 
ensue  a  kind  of  confusion  in  the  texture  of  its  logical  principles  and 
social  progress  may  be  slow  to  penetrate  it."  2  At  the  time  of  the 
publication  of  the  German  First  Draft,  Otto  Gierke  very  forcibly 
pointed  out  the  disadvantages  of  what  he  styled  "  the  abstract 
casuistry  "  of  the  drafters.3  The  final  text  was  modified  and  im- 
proved in  this  regard ;  nevertheless,  though  in  less  measure,  it  is 
open  to  the  same  criticism.  A  code  drawn  up  with  the  constant 
care  that  it  adjust  itself  to  every  detail  of  technical  construction 
and  to  all  the  subtleties  of  dogmatic  thought,  perhaps  never  can 
wholly  escape  this  reef.  The  very  striking  contrast  in  this  respect 
between  the  Swiss  Draft  and  the  German  Code  has  been  pointed 
out  by  all  commentators.4  We  do  not  hesitate  to  regard  this  as  a 
mark  of  superiority  of  the  Swiss  Federal  legislation. 

(2)  New  Legal  Theories.  — ■  In  the  second  place,  as  we  have  just 
observed,  the  French  Civil  Code  is  silent  upon  many  theories 
elaborated  in  foreign  countries,  which  the  recent  development  of 
studies  in  comparative  law  has  brought  to  the  knowledge  of  France, 
and  which,  in  certain  respects,  may  appear  preferable  to  the  French 
traditional  theories.  That  this  is  a  defect  from  the  purely  scien- 
tific point  of  view  many  authors  think,  and  we  agree  with  them. 
But  we  must  be  careful  not  to  exaggerate  the  practical  importance 
of  these  defects  and  deficiencies.  In  fact,  when  we  examine  the 
application  of  the  Code  to-day,  we  find  generally  that  the  courts, 
by  utilizing  the  traditional  elements  contained  in  the  Code,  have 
arrived  at  results  very  similar  to  the  recent  innovations  of  foreign 
law.  Xo  doubt  some  differences  persist,  made  necessary  by  the 
difference  itself  in  the  principles  upon  which  the  reasoning  rests. 
But  these  seem  very  small  alongside  the  contrast  presented  by  the 
abstract  theories. 

The  Civil  Code,  for  instance,  does  not  mention  the  transfer- 

1  Cf.,  for  example.  If  aider,  "  Allgemeiner  Teil  des  B.  G.  B.",  pp.  15  et 
■s<</.  Cf.  Saleilles,  "Introduction  a  l'etude  du  droit  civil  allemand",  pp. 
88  '  i  seq. 

2  Op.  cit.,  p.  119. 

:;  "  I'] nt  wiiii  ",   pp.  5X  il  acq. 

'For  example,  Rilmelin,  "Dor  Vorentwurf  zu  einem  Schweizerischen 
Gvilgesetzbuch.",  p.  5;  Barazetti,  "Der  Vorentwurf  zum  ersten  und 
zweiten  Teil  des  Schweizerischen  Civilgesetzbuchs  "  (Bern,  L898). 

292 


Chap.    VII]  OLD   AND    NEW    CODES   CONTRASTED  [§  2 

ability  of  the  liability  of  a  debt  by  assignment ;  but  in  the  German 
Code  this  idea  underlies  the  whole  theory  of  the  promise  to  pay  the 
debt  of  a  third  party.  There  is  absolute  repugnance  in  the  two 
principles.  Nevertheless,  by  a  skilful  use  of  the  novation  of  the 
debtor  ("  delegation  passive  "),  and  the  promise  for  the  benefit  of 
a  third  party,  which  are  traditional  institutions  of  our  national  law, 
French  courts  and  text  writers  have  succeeded  in  almost  completely 
concealing  this  omission  of  our  legislation.  Likewise  it  might 
not  be  impossible,  by  combining  with  our  classical  principles  of 
co-ownership  the  idea  of  an  implied  partnership  between  co- 
owners,  to  arrive  at  most  of  the  conclusions  which  are  reached  in 
practice  under  the  German  theory  of  joint  ownership.  So,  also, 
there  is  scarcely  an  important  result,  based  in  German  doctrine 
upon  the  theory  of  an  engagement  founded  upon  a  unilateral  dec- 
laration of  will,  which  has  not  been  explained  in  France  without 
abandoning  the  classical  ideas. 

No  doubt  the  theories  that  we  have  thus  constructed  in  order  to 
shape  to  new  requirements  old  institutions  that  were  devised  for 
other  purposes,  are  at  times  subtle,  perhaps  artificial,  or  over- 
charged with  fictions.  For  this  special  reason,  and  not  to  intro- 
duce into  practice  any  profound  modification,  certain  authors 
consider  that  it  would  be  very  advantageous  to  introduce  the 
foreign  principles  into  the  text  of  our  Code.  But  it  should  be  well 
understood  that  they  do  not  regard  it  at  all  as  involving  a  complete 
revision ;  they  simply  demand  the  addition  to  the  complicated 
mechanism  of  our  civil  legislation,  of  a  few  new  wheels,  which 
would  modify  but  little  the  aspect  of  the  whole.  Even  those  who 
(in  agreement  with  the  authors  of  the  Swiss  Draft)  believe  that  the 
text-writer  and  judge  have  the  right  to  fill  the  omissions  of  the 
law  by  an  unfettered  scope  of  judgment,1  will  be  of  the  opinion 
that  the  improvement  can  generally  be  realized  without  the  inter- 
vention of  the  legislator,  by  simply  enlarging  the  methods  of  appli- 
cation. 

(3)  Scientific  Arrangement. — As  to  the  undeniable  defects  of 
the  general  construction  and  plan  of  the  French  Code,  they  would 
be  certainly  of  the  utmost  seriousness  in  a  scientific  work.  A 
doctrinal  work  which  did  not  separate  the  general  theory  of  jural 
acts  from  the  theory  of  contracts ;  which  brought  together  subject- 
matters  as  incongruous  as  the  various  Titles  of  the  Third  Book  of 
the  Civil  Code ;  which  in  the  same  chapter  dealt  with  two  institu- 
tions as  distinct  as  the  acquirement  and  loss  of  rights  by  lapse  of 
1  Draft,  Swiss  Civ.  C.  Art.  1,  pars.  2,  3,  supra,  note  4. 
293 


§  2]  PART    II      NATIONAL    CODIFICATION  [Chap.    VII 

time ;  would  be  deserving  of  the  severest  criticism.  In  a  purely 
practical  work  these  defects  of  method,  which  along  with  many 
others  are  noticeable  in  the  Civil  Code,  have  but  a  very  lessened 
importance.  It  rarely  happens  that  they  are  a  source  of  obscurity 
or  real  difficulty  for  the  judge.  As  to  the  commentaries,  these 
need  only  reflect  the  influence  of  the  defective  plan  of  the  Code  if 
their  authors  surrender  to  that  narrow  method  of  exposition  which 
dares  not  break  away  from  the  plan  adopted  by  the  legislator. 

Upon  this  point  also  the  Swiss  Draft  is  instructive.  While 
avoiding  the  defects  in  general  construction  which  somewhat  mar 
the  French  Code,  its  authors  have  remained  well  free  of  the  scruples 
as  to  method  that  characterize  the  German  Code.  Renouncing 
the  idea  of  drafting  an  introductory  chapter  laying  down  general 
principles,  they  have  contented  themselves  with  a  "  Preliminary 
Title  "  in  twelve  articles,  similar,  at  least  in  external  form,  to  the 
"  Preliminary  Title  "  of  the  French  Code.  In  the  same  way  they 
did  not  hesitate,  in  applying  the  Code,  to  refer  back  to  the  part 
upon  obligations,  for  all  matters  relating  to  the  general  theory 
of  jural  acts.1  They  certainly  perceived  the  objection  which 
might  be  raised  against  this  arrangement  from  the  point  of  view 
of  theory ;  but  from  the  practical  point  of  view  it  did  not  seem  to 
them  decisive.2  Here  also  they  have  deviated  from  the  German 
Code  and  approached  the  French. 

Of  all  the  criticisms,  then,  upon  grounds  of  theory,  that  have 
been  directed  against  the  Code,  not  one  seems  to  us  to  carry  suffi- 
cient weight  to  render  a  revision  of  the  whole  necessary.  At  most 
the  filling  of  some  gaps  and  the  improvement  of  a  few  details  is 
desirable.  The  example  of  recent  foreign  codifications,  which  is 
often  called  upon  when  our  Code  is  passed  in  judgment,  does  not 
seem  to  offer  in  this  respect  very  decisive  reasons  for  condemning  it. 

§  3.  Economic  and  Sociological  Criticisms.  —  There  remain 
to  be  considered  the  criticisms  of  an  economic  and  social  order. 
These,  it  must  be  confessed,  seem,  at  first  thought,  infinitely  more 
serious  than  the  others. 

1  Draft,  Swiss  Civ.  C,"  Art.  9  :  "The  general  rules  of  the  Rook  upon 
Obligations  apply  by  analogy  to  the  other  subjects  of  the  Civil  law." 

-  "Message,  pp.  9-10:  What  would  be  the  advantage  of  transferring 
the  provisions  relating  to  mistake  from  the  general  part  of  the  law  of 
obligations,  where  they  are  most  frequently  applied,  to  that  of  the  Civil 
Code  itself?"  We  should,  moreover,  note  that  legislation  covering  jural 
a ei  iii  genera]  would  have  involved  the  revision  of  the  text  of  the  Federal 
( 'ode  of  <  >bliga1  ions  of  L881.  Such  a  revision,  at  present  under  si  udy,  had 
then  been  postponed.  This  consideration  influenced  the  decision  of  I  lie 
authors  of  the  Draft.  Cf.  "Message",  etc.,  ibid.;  and  Rilmelin,  "  Der 
Vorentwurf  zu  einem  Schw.  C.  G.  B.",  p.  4. 

294 


Chap.    VII]  OLD   AND   NEW   CODES   CONTRASTED  [§  4 

They  are  of  two  sorts.  Some  are  of  general  import ;  they 
reach  to  the  spirit  itself  of  the  Code  and  to  the  essential  social 
principles  which  dominate  it  throughout.  Others,  more  specific, 
aim  at  definite  classes  of  institutions ;  scarcely  any  part  of  the 
Code  is  completely  exempt  from  them  to-day.  Both  seem  to  us 
insufficient  to  justify  a  complete  revision.  This  is  what  we  shall 
endeavor  briefly  to  show,  by  references  also  in  this  case  to  recent 
foreign  codifications. 

§  4.  The  Same ;  a  Class  Legislation.  —  The  reproach  most 
often  heard  to-day,  directed  against  the  Code  of  1804,  chiefly  by 
partisans  of  extreme  social  reforms,  is  that  it  is  class  legislation  :  — 
a  Code  of  the  middle  classes,  made  exclusively  by  and  for  the  well- 
to-do  ;  a  capitalist  Code,  forgetful  of  the  rights  and  interests,  and 
hostile  to  the  development,  of  the  working  class.  Supported  by 
this  criticism,  the  inadequacy  of  the  provisions  relating  to  the  labor 
contract  is  pointed  to ;  with  such  sparing  rules  are  contrasted  the 
abundance  and  minuteness  of  detail  with  regard  to  property ; 
emphasis  is  laid  upon  the  predilection  with  which  the  legislator  of 
1804  regulated  all  the  contracts  the  purpose  of  which  was  the  circu- 
lation or  marketing  of  capital,  such  as  sale,  lease,  associations  for 
profit,  etc.1  And,  in  conclusion,  a  new  Code  is  demanded  which 
would  be  the  sociological  antithesis  of  the  old.  Warning  signs  are 
said  to  be  seen  in  the  recent  legislative  reforms  and  in  certain 
present-day  tendencies  of  judicial  interpretation. - 

The  conclusion  is  dangerous,  and  its  premise  is  false.  The  Civil 
Code  is  not  a  class  legislation  ;  it  is  the  Code  of  a  complete  society. 
If,  on  judging  it,  we  take  into  account  in  the  first  place  the  period 
when  it  was  drafted,  it  in  no  wise  appears  as  an  instrument 
intended  to  exclude  classes  or  to  cause  strife.  It  is  true  that  the 
provisions  concerning  the  labor  contract  occupy  an  insignificant 
portion  ;  but  it  has  very  often  been  shown  that  this  fact  can  in  no 
manner  be  explained  upon  the  basis  of  a  want  of  regard  for  the 
non-propertied  classes.  In  the  economic  state  of  France  in  1804 
the  very  feeble  growth  of  industry  scarcely  admitted  a  percep- 
tion of  all  the  legal  difficulties  to  which  the  relations  between 
employer  and  employee  might  give  rise.  The  possibility  of 
leaving  the  labor  contract  to  the  common  law  was  admissible. 
The  problem  of  the  collective  labor  contract  was  not  yet  imag- 
ined.    Consequently,  the  omission,  which  is  emphasized  to-day, 

1  As  examples,  cf.  Salvioli,  "I  difetti  sociali  del  Codice  civile";  Maxime 
Leroy,  "Le  Code  civil  et  k>  droit  nouveau",  bk.  I. 

2  Maxime  Leroy,  ibid.,  bk.  II. 

295 


§  4]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

could  by  no  means  seem  dangerous  and  offensive  at  the  beginning 
of  the  last  century. 

It  is  true  that  economic  and  social  conditions  have  changed. 
Problems  which  were  not  even  perceived  in  1804  have  become  vital, 
and  urge  themselves  before  all  others  upon  the  attention  of  the 
legislator.  It  is  hardly  possible  longer  to  maintain  that  the  com- 
mon law  suffices  to  regulate  all  the  difficulties  arising  from  the 
labor  contract  and  all  the  problems  concerning  the  condition  of  the 
laboring  class.1  Thus  the  omissions  of  1804  become  now  a  serious 
legislative  deficiency.  But,  to  remedy  them,  it  is  by  no  means 
necessary  to  remake  the  Code  in  its  entirety.  While  social  environ- 
ment has  changed,  the  Code  has  not  for  that  reason  become  an 
obstacle  to  necessary  progress.  In  this,  as  in  everything  else,  it 
remains  an  instrument  of  a  wonderful  flexibility.  Nothing  in  its 
text  indicates  a  spirit  hostile  to  the  protection  of  labor.  Article 
1781,  often  cited  to  establish  the  contrary,  and  which  provided 
that  the  employer  should  be  believed  upon  his  own  affirmation  as 
to  the  amount  or  the  payment  of  wages,  was  mainly  intended  to  end 
difficulties  of  proof ;   moreover,  it  was  repealed  in  1868.2 

It  would,  then,  be  an  easy  matter  to  satisfy  the  deficiencies  of  our 
system,  either  by  drafting  (according  to  a  plan  already  brought  to 
the  attention  of  the  Chamber)  a  Code  of  Labor,  which  would  exist 
alongside  of  the  present  Civil  Code;  or  by  introducing  into  the 
Civil  Code  (after  the  example  of  the  German  legislator)  a  Title 
devoted  to  the  labor  contract,  in  which  would  be  regulated  not 
only  the  contract  with  the  individual  but  also  the  collective  con- 
tract.3 But  what  is  most  important  to  note  is  that  all  this  would 
in  no  wise  imply  the  surrender  of  the  general  principles  and  essen- 
tials of  our  present  law  with  regard  to  the  regulation  of  property 
rights  or  to  the  theory  of  contracts.  We  have  the  example  of  the 
German  and  Swiss  legislation  as  a  corroboration,  and  rather  by 
disregarding  it  would  we  risk  making  the  Code  what  it  never  was  : 
an  instrument  of  caste  and  prejudice. 

§  5.  The  Same ;  Old  Concepts  of  Liberty  and  Equality.  —  It 
is  true  that  criticism  may  take  another  form.  The  Civil  Code,  it 
may  be  said,  is  an  obstacle  to  the  socialization  of  the  law,  less  by  the 

1  Gla88on,  "Le  Code  civil  et  la  question  ouvriere"  (1880). 

/'/.,   pp.    16  (I  acq. 

'■'  The  (icnii.m  <  'ode  devotes  twenty-one  Articles  (Arts.  631-651)  to  the 
contracl  for  work  ("Werkvertrag")  which  it  distinguishes  from  the  labor 
contracl  ("Dienstvertrag"),  Arts.  611  630.  It  is  upon  this  pari  of  the 
Swiss  Federal  Code  of  Obligations  that  the  most  radical  modifications  of 
the  texl  of  L881  will  bear.     Cf.  "Journal  de  Geneve"  (Oct.  4  and  9,  1904). 

296 


Chap.    VII]  OLD   AND   NEW   CODES   CONTRASTED  [§  5 

precise  provisions  of  its  text  than  by  the  general  spirit  which  per- 
vades it.  Essentially  individualistic,  it  rests  entirely  upon  two 
social  ideas,  handed  down  from  the  Revolution  but  profoundly 
transformed  within  a  century:  the  idea  of  liberty  and  the  idea  of 
equality. 

The  principle  of  individual  liberty,  which  seemed  absolute  to  the 
minds  of  the  Constitutional  Assembly  and  which  came  to  be  limited 
only  by  the  necessity  of  maintaining  public  order,  is  weakening  in 
contemporary  social  philosophy,  until  it  is  on  the  point  of  almost 
complete  disappearance  in  the  doctrine  of  socialism.1  Certain 
critics  of  the  Civil  Code  declare  that  "  the  individual  has  no  per- 
sonal and  inherent  right  to  the  liberty  of  acquiring  and  contracting." 
"  He  possesses  this  right,"  they  say,  "  only  as  a  member  of  society. 
.  .  .  Liberty  should  be  accorded  only  in  the  measure  in  which  it 
proves  to  serve  collective  interests."  2  It  is  the  reverse  of  the 
classic  formula.  In  1804  it  was  said  that  the  individual  was,  in 
general,  free,  save  in  the  case  where  the  exercise  of  such  freedom 
was  against  public  policy.  To-day  it  is  said  that,  in  general,  the 
individual  is  free  only  in  the  case  where  such  freedom  is  useful  to 
common  interests. 

The  same  transformation  has  taken  place  in  the  idea  of  equality. 
Equality  before  the  law,  as  conceived  in  the  Civil  Code,  was,  in 
Monger's  phrase,  "  a  caricature  of  equality." 3  According  to 
Salvioli,  who  in  this  respect  considers  the  Code  as  the  heir  of  the 
Roman  law,  "  equality  in  the  Roman  conception  required  that  the 
law  should  not  artificially  favor  one  human  force  to  the  detriment 
of  another.  That  inequality  which  flowed  naturally  from  the 
difference  of  such  forces  did  not  offend  the  juridical  sense  of  the 
Romans.  But  it  does  offend  ours,  for,  as  the  world  progresses, 
our  sense  of  justice  becomes  more  acute  and  our  sense  of  equality 
finer.  It  is  by  our  effort  to  consider  and  to  treat  as  equal  persons 
who  are  not  equal  that  the  true  inequality  is  created.  Our  jurists 
imagine  that  they  are  fulfilling  the  right  of  equality  when  they 
establish  equality  of  right ;  it  is  an  illusion  remote  from  the 
reality."  4  Thus,  while  the  classic  concept  of  equality  made  the 
legislator  a  passive  spectator  of  economic  and  social  inequalities, 
the  socialist  concept  commands  him  to  intervene  to  restore  the 
equilibrium  of  human  forces,  by  favoring  those  who  are  naturally 

1  Cf.  Menger,  "L'Etat  soeialiste"  (Fr.  trans.),  pp.  85  et  seq. 
'-'  Salvioli,  op.  tit.,  p.  36. 

3  Menger,  op.  cit.  (Fr.  trans.),  p.  91,  and  also  bk.  I,  chap.  XI. 

4  Salvioli,  op.  cit.,  pp.  12,  13. 

297 


§  5]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

weak,  to  the  detriment  of  those  who  are  naturally  strong.  For 
equality  before  the  law  is  substituted  equality  created  artificially 
by  law. 

These  are  extreme  formulae  which  even  the  boldest  legislation 
has  never  concretely  applied  and  whose  dangers  have  been  re- 
peatedly pointed  out.  Carried  to  their  ultimate  consequences, 
these  principles  would  lead  in  private  law  to  results  much  more 
serious  than  the  revision  of  the  Civil  Code :  they  would  destroy 
civil  law  itself.  By  making  the  arm  of  the  State  felt  in  all  fields 
of  private  economic  activity,  administrative  and  penal  law  would 
everywhere  be  substituted  for  private  law.  Menger  foresees  very 
clearly  this  revolution  in  organization.1  We  need  hardly  say  that 
the  example  of  those  neighboring  legislations  most  infused  with 
the  new  tendencies  radically  condemns  it. 

(1)  The  Effects  of  Solidarity.  —  However,  dismissing  definitely 
these  exaggerations,  we  have  to  recognize  that,  in  the  average, 
present-day  legal  sentiment,  the  selfish  individualism  of  1804  is 
gradually  weakening  in  contact  with  the  philosophy  of  solidarity. 
To  this  extent  it  may  truthfully  be  said  that  we  no  longer  conceive 
liberty  and  equality  as  did  the  framers  of  the  Code.  If  we  uphold 
the  elemental  right  of  the  individual  to  the  free  exercise  of  his 
forces,  we  admit  at  the  same  time,  in  a  much  broader  sense  than 
the  classic  doctrine,  the  idea  of  a  social  end  to  which  those  forces 
must  converge.  If  we  refuse  to  impose  upon  the  legislator  the 
impossible  task  of  artificially  levelling  inequalities,  we  nevertheless 
recognize  his  duty  to  protect  the  weak ;  we  say  that  to  a  greater 
economic  power  correspond  broader  obligations.  Upon  these  two 
points  the  German  Civil  Code,  and  even  more  the  Draft  of  the 
Swiss  Code,  show  us  the  way  to-day.  So  understood,  it  would  seem 
that  the  socialization  of  law  ought  to  enlist  the  approval  of  the 
large  majority  of  French  jurists. 

(2)  Admission  of  New  Principles  through  Old  Texts.  —  The 
discord  is,  then,  audible  between  the  underlying  principles  of  the 
drafters  of  the  Code  and  contemporary  ideas.  But  this  discord,  as 
we  have  defined  it,  entails  by  no  means  a  complete  rewriting. 

It  has  been  said  that  certain  texts  of  the  Code,  which  are  very 
general  and  pliable,  might,  by  a  courageous  application  become 
(in  Jhering's  expression)  "  the  entering  wedge  "  of  the  new  prin- 
ciples. Such  are,  for  example,  Article  6  and  those  provisions  which 
declare  void  all  agreements  contrary  to  public  policy  and  good 

1  "L'Etat  socialiste"  (Fr.  trans.),  bk.  II,  chap,  xvi,  and  ibid.,  introd. 
by  A  a illcr,  pp.  xx-xxi. 

298 


CHAP.    VII]  OLD    AND    NEW    CODES   CONTRASTED  [§  5 

morals,  without  however  defining  those  two  notions  so  vague  in 
themselves.  Such  provisions  permit  the  judge  to  follow  the  modi- 
fications which  an  evolution  in  ideas  causes  in  the  two  concepts,  and 
to  extend  his  protecting  interference  in  proportion  to  their  expan- 
sion. Such  again  is  Article  1382,  which  recent  applications  have 
succeeded  in  harmonizing  with  theories  of  civil  liability  far  re- 
moved from  the  classical  doctrine.1  As  to  the  adaptation  of  the 
Code  to  modern  social  principles,  we  may  here  remark  (in  a  line 
with  what  has  just  been  said  concerning  its  adjustment  to  scientific 
ideas)  that  the  legislator  has  very  wisely  avoided  those  general 
definitions  which  soon  become  an  obstacle  to  progress ;  and  his 
silence,  on  many  points,  has  left  a  free  field  to  interpretation.  On 
occasion,  too,  principles  of  law,  scarcely  outlined  in  the  texts,  have 
become  the  origin  of  whole  series  of  judge-made  creations  ;  and  the 
list  has  not  yet  been  closed.  Thus,  Article  1121,  which  regulates, 
though  very  imperfectly,  the  promise  for  the  benefit  of  a  third 
party,  has  already  enabled  the  courts  to  validate  and  work  out 
certain  varieties  of  contracts  of  insurance  and  of  mutual  aid. 
There  is  reason  to  believe  that  the  usefulness  of  this  Article  is  not 
yet  terminated ;  it  represents  in  the  present  Code  an  agency  of 
social  progress  beyond  appreciation.2 

(3)  Admissionof  Principlesivithout  Any  Foundation  in  the  Texts. — 
Alongside  the  improvements  thus  founded  upon  actual  texts  of  the 
Code,  still  others  (of  which  foreign  legislations  have  already  offered 
us  an  example  for  which  in  France  the  support  of  express  texts  is 
wanting)  can,  nevertheless,  be  introduced  without  legislative 
reform.  The  German  Code  and  the  Swiss  Draft  have  expressly 
sanctioned  the  theory  of  the  misuse  of  right,  which  marks  among 
modern  judicial  principles  one  of  the  most  important  stages  in  the 
"  socialization  "  of  law.3     This  doctrine  admits  that  subjective 

1  Cf.  Chnrmant,  "La  socialisation  du  droit",  p.  24.  Certain  theoricians 
of  the  socialist  party  have  even  maintained  that  Art.  1382  supplies  a 
legal  foundation  to  their  claims.  Emmanuel  Levy,  in  "Revue  trimestrielle 
de  Droit  civil"  (1903),  p.  96;  Jaures,  "Etudes  socialistes",  p.  1(32.  The 
generality  of  Art.  6,  especially  with  respect  to  public  policy,  seemed  exces- 
sive to  the  German  legislator.  In  view  of  the  claims  of  the  socialist  party 
it  seemed  to  him  dangerous  to  allow  the  setting  aside  of  an  act  in  law  to  be 
based  upon  such  a  vague  and  inadequately  defined  notion.  Thus  Art. 
138,  par.  1  of  the  German  Civ.  C.  sets  aside  only  those  jural  acts  which 
are  contrary  to  moral  justice,  without  mentioning  public  policy.  Cf. 
Saleilles,  "Declaration  de  volonte",  pp.  251  <t  seq. 

2  Vivante,  "L'  influenza  del  socialismo  nel  diritto  privato",  pp.  19,  20. 

3  Draft,  Swiss  Civ.  C,  Art.  3:  "Whoever  manifestly  misuses  his  right 
shall  enjoy  no  legal  protection  ;"  [Civ.  C,  Art.  2,  par.  2.  —  Traxsl.]  ;  Draft, 
Art.  670:  "Whoever  is  injured  or  threatened  with  injury  by  the  misuse 
which  an  owner  makes  of  his  right,  has  an  action  against  him  to  compel 
him  to  restore  things  to  their  previous  state,  or  to  take  proper  measures 

299 


§  5]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

rights  may  not  be  exercised  with  absolute  impunity ;  that  every 
right  is  recognized  as  belonging  to  the  individual  for  the  attainment 
of  a  certain  social  object;  and  that  the  possessor  of  a  right,  by 
turning  it  away  from  the  end  which  justifies  it,  commits  a  wrong 
and  makes  himself  liable.1  It  has  been  very  justly  observed  that 
this  implies  a  profound  modification  in  the  classic  principle  of 
liberty  in  the  exercise  of  rights.  Those  legislations  which  sanction 
the  new  theory  introduce,  in  the  words  of  Saleilles,2  "  the  truly 
social  conception  of  subjective  right."  Now,  to  introduce  the  new 
theory  into  the  application  of  the  French  Code,  it  suffices  to  accept 
this  "  social  conception",  such  as  the  German  and  Swiss  legislators 
have  admitted  it ;  and  that  may  be  accomplished  with  us  without 
reform  of  the  text,  for  the  authors  of  the  French  Code,  by  very 
wisely  refraining  from  defining  subjective  right,  left  full  freedom 
upon  the  subject  to  that  evolution  which  legal  writers  might 
effect.  Our  courts  in  the  last  fifteen  years,  moreover,  have  not 
waited  for  legislative  directions  to  apply  often  the  theory  sanc- 
tioned by  the  foreign  codes.3 

(4)  Changes  requiring  Legislation.  —  We  could  go  yet  further 
in  the  direction  indicated  by  recent  foreign  codifications  ;  but  here 
the  intervention  of  the  legislation  would  become  necessary.  Article 
138  of  the  German  Civil  Code,  the  result  of  long  discussion  and 
legislative  evolution,  sets  aside  as  contrary  to  good  morals  any 
jural  act  "  whereby  a  person  profiting  by  the  difficulties,  indiscre- 
tion or  inexperience  of  another,  causes  to  be  promised  or  granted  to 
himself  or  to  a  third  party,  for  a  consideration,  pecuniary  advan- 
tages which  exceed  the  value  of  the  consideration  to  such  an  extent 
that,  having  regard  to  the  circumstances,  the  disproportion  is 

to  remove  the  danger,  without  losing  his  right  to  damages";  [Civ.  C, 
Art,  079.  —  Transl.].  The  Preliminary  Draft  of  1900,  Art.  644,  applied 
the  notion  of  the  misuse  of  a  right  only  to  the  right  of  property.  While 
preserving  it  in  Art.  670  [these  Articles  of  the  Draft  and  Code  are  in  fact 
limited  to  real  estate. — TRANSL.]_the  Draft  of  1904  by  Art.  3  (Civ.  C, 
Art.  2.  par.  2),  generalizes  the  principle.  Cf.  'Message',  p.  14:  "Practical 
consideral  ions  militate  in  favor  of  this  formula,  expressed  in  general  terms. 
By  it  we  have  created  a  sort  of  extraordinary  recourse,  which  should 
assure  respect  for  justice  to  the  advantage  of  those  who  may  suffer  from 
a  manifest  misuse  of  a  right  by  a  third  party,  whenever  ordinary  means 
are  inadequate  to  protecl  I  hem." 

Cf.  the  (lerman  Civ.  C,  Irts.  226  and  826,  and  the  note  on  these  texts 
accompanying  Arl .  226  in  1  he  t  ranslation  of  the  '  terman  *  !iv.  ( !.  published 
by  the  Connie  de  Legislation  etrangere ;  also  Snlcillcs,  "Theorie  generate 
de  l'obligation  d'apres  I"  premier  projel  de  Code  civil  pour  l'Empire 
d'Allemagne"  (2d  ed.),  pp.  369  370. 

1  Cf.  Porcherot,  "L'abus  du  droit"  (thesis,  Dijon.  1901),  and  the  re- 
marks of  Charmont  in  "Revue  trimestrielle  de  Droit  civil"  (1902). 

"  Suit  -Mrs,  "Theorie  generate  de  ['obligation",  p.  370,  no.  1. 

3  Porcherot,  op.  cit.,  I'nv  analysis  of  the  decisions. 

300 


CHAP.    VII]  OLD   AND    NEW    CODES    CONTRASTED  [§  6 

obvious."  Such  a  provision  will  quite  frequently  enable  the 
weak,  when  victims  of  another's  exploitation,  to  be  protected, 
where  the  classic  French  theories  of  want  of  consent  or  of  inequi- 
table price  would  leave  the  court  powerless.1  Another  interesting 
rule  is  found  in  Article  343  of  the  German  Code,  where,  in  the 
special  subject  of  penal  clauses,  a  very  remarkable  tendency  to 
enlarge  the  protective  powers  of  the  judge  is  apparent.  "If  a 
forfeited  penalty,"  the  text  says,  "  is  disproportionately  high,  it 
may  be  reduced  to  a  reasonable  amount  by  judicial  decree  ob- 
tained by  the  debtor.  In  the  determination  of  reasonableness 
every  legitimate  interest  of  the  creditor,  not  merely  his  property 
interest,  shall  be  taken  into  consideration.  .  .  ."  2  The  practical 
import  of  this  power  of  mitigation  becomes  evident  in  its  applica- 
tion, for  example,  to  cases  of  loss  or  reduction  of  wages  imposed  as 
penalties  by  the  rules  of  workshops.  This  is  of  course  only  a 
tendency,  but  it  is  found  again,  in  a  more  general  and  somewhat 
vague  manner,  in  the  Swiss  Draft.  Indeed,  the  considerable 
enlargement  of  the  courts'  discretionary  and  protective  powers  has 
justly  been  pointed  out  as  one  of  the  essential  characteristics  of 
this  legislative  work.3  Some  critics  even  see  a  certain  excess  in  this 
latitude.4  A  reform  of  the  French  Code,  introducing  all  the  inno- 
vations desirable,  and  completely  harmonizing  our  law  with  the 
most  exacting  demands  of  the  average  legal  mind,  could  be  realized 
with  the  utmost  facility  by  retouching  a  few  details. 

§  6.  Criticism  of  Specific  Revisions.  —  We  arrive  at  the  same 
conclusion  when  we  turn  from  the  examination  of  the  general 
ideas  that  have  governed  and  inspired  the  Code  to  the  criticism 
directed  against  specific  passages.  Upon  none  of  the  institutions 
regulated  by  its  text  has  it  escaped  criticism ;  to  recall  them  here 

1  Cf.  the  note  of  the  French  translation  by  Comite  de  Legislation  etran- 
gere,  and  the  very  important  study  of  Saleilles,  in  "Declaration  de 
volonte",  pp.  251-302. 

'-'  ( '/.  note  of  the  French  translation  supra,  note  42 ;  Swiss  Fed.  C.  of 
Oblig.,  Art.  1S2.  Concerning  the  moderating  power  of  the  judge  in  tho 
mailer  of  penal  clauses,  cf.  the  interesting  observations  of  Hugueney, 
"L'i<l;V  de  peine  privee  en  droit  contemporain "  (thesis,  Dijon,  1904), 
pp.  186  ( t  seq. 

■'■  ( './'.  examples  of  the  very  broad  powers  of  discretion  accorded  the  judge 
by  the  Swiss  Draft  in  its  Art.  2'.)  with  regard  to  damages  for  an  unlawful 
act  affecting  one's  personal  status  (Civ.  C,  Art.  28)  ;  Art.  102,  on  breach 
of  promise  to  marry  (Civ.  C,  Art.  93) ;  Art.  158,  on  redress  to  the  innocent 
parly  of  injury  resulting  from  divorce  (Civ.  C,  Art.  151  > ;  Art.  699,  on  ex- 
propriation of  waters  yieldingto  their  owner  benefits  small  as  compared  to 
those  resulting  from  their  public  exploitation  (Civ.  C.  Art.  711),  etc.  Cf. 
upon  the  character  of  the  Swiss  Draft,  Rumelin,  "Der  Vorentwurf  zu 
einem  Schweizerischen  C.  G.  B.",  pp.  6  et  seq. 

4  Rumelin,  ibid.,  pp.  8,  9. 

301 


§  6]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

would  be  almost  superfluous.  With  regard  to  the  family,  demand 
is  heard  for  greater  independence  for  the  wife,  a  curtailment  of 
the  paternal  power,  a  betterment  of  the  condition  of  the  natural 
child,  a  reform  of  the  laws  of  succession.  As  to  the  right  of  prop- 
erty, objection  is  raised  to  its  absolute,  exclusive,  and  too  strictly 
individualistic  character.1  In  the  law  of  contracts  the  very  prin- 
ciple of  the  autonomy  of  the  will  is  attacked  upon  the  grounds  that 
it  is  merely  a  particular  application  of  the  classic  conception  of 
liberty,  which  aggravates  the  condition  of  the  weak  by  favoring 
the  strong. 

From  this  new  point  of  view  also,  the  application  of  the  com- 
parative method  leads  to  like  results.  When  the  Civil  Code  is 
placed  alongside  recent  codifications,  it  becomes  apparent  that 
the  boldest  reforms  that  have  seemed  realizable  in  practice,  do  not 
involve,  upon  any  of  the  points  we  have  mentioned,  a  radical 
abandonment  of  the  fundamental  principles  of  the  Code.  Let  us 
glance  at  the  Swiss  Draft,  the  special  interest  of  which  in  this 
matter  we  already  know.  We  shall  see  that,  imbued  as  it  is  with 
the  "  social  "  spirit,  it  preserves  (like  the  French  Code),  as  unalter- 
able principles,  the  idea  of  the  family,  based  upon  marriage  and 
presided  over  by  a  directing  head ;  private  property  with  its 
classic  attributes  ;  and  the  principle  of  liberty  of  contract.  Ex- 
perience shows,  then,  that  in  spite  of  all  criticisms,  these  ideas 
remain  the  necessary  foundation  of  a  private  law  that  pretends  to 
practical  usefulness. 

(1)  The  Married  Woman.  —  A  few  rapid  references  to  the  Swiss 
Draft  will  confirm  our  judgment.  Upon  the  question,  so  eagerly 
discussed  to-day,  of  the  condition  of  the  married  woman,  the  Draft 
sets  out  from  a  principle  which  the  most  radical  feminist  would  not 
reject.2  "  We  create  for  the  married  women,"  says  the  "  Message  " 
of  May  28,  1904,  "  a  position  of  independence  in  accord  with  our 
customs."  3  Applying  this  idea,  the  Draft  suppresses,  by  merely 
ignoring  it,  the  incapacity  of  woman ;  but  this  incapacity  French 
jurists  now  unite  in  condemning,  by  reason  either  of  its  ambiguous 
principle  or  of  the  defective  treatment  it  has  received  in  the  Civil 
Code.  "  After  the  abolition  of  guardianship  based  upon  sex  and 
the  restoration  of  civil  capacity  to  single  women  of  age,  it  would 
not  seem  possible,"  says  very  justly  the  '  Message  ',  "  that  this 

1  We  purposely  omil  nil  the  criticisms  directed  against  our  system  of 
publicity  in  conveyancing,  and  against  our  mortgage  system.  In  these 
matters  every  one  agrees  in  demanding  a  reform. 

*  Draft,  Arls.   166    17!',  (Civ.  C,  Arts.   101-168). 

»P.26. 

302 


CHAP.    VII]  OLD    AND    NEW   CODES   CONTRASTED  [§  6 

capacity  should  be  denied  to  married  women."  1  But  the 
authors  of  the  Draft,  having  thus  laid  down  the  principle,  pro- 
ceeded at  once  to  restrain  themselves  from  exaggeration  in 
its  practical  application.  "The  civil  capacity  of  the  wife," 
they  say,  "  is  limited  on  the  one  hand  by  the  interests  of  the 
union,  on  the  other  by  the  system  of  marital  property ; "  2  to- 
day we  must  "  establish  the  solidarity  of  interests  of  the  wife 
with  those  of  the  marriage  union;  since  the  abolition  of  a  guard- 
ianship based  upon  sex,  the  task  of  the  modern  legislator  con- 
sists simply  in  defining  with  greater  precision  the  conditions  of 
this  solidarity."  3 

Thus,  after  all,  the  concessions  to  the  feminist  doctrines  are 
found  to  be  limited  by  a  very  just  understanding  of  the  nature  of 
the  marriage  union.  The  wife  may  exercise  a  profession  or  an 
industry  ;  but  the  husband  has  the  power  to  prevent  the  exercise  of 
this  right  "  if  it  would  become  prejudicial  or  dangerous  to  their 
union,"  and  such  refusal  is  subject  to  annulment  by  the  judge  if 
unjustified.4  Should  the  husband  neglect  his  duties  toward  his 
wife  and  children,  the  debtors  of  the  husband,  and  especially  his 
employers,  may  be  authorized  to  pay  to  the  wife  in  his  stead  ;  but 
thi  i  authorization  may  be  granted  only  by  the  judge  upon  petition 
of  the  injured  spouse.5  The  law  readily  admits  the  separation  of 
estates,  either  upon  motion  of  the  court  in  case  of  bankruptcy  of 
one  of  the  spouses,6  or  upon  petition  of  the  wife,7  or  even  upon 
request  of  the  husband  or  a  creditor.8  It  adopts  the  principle 
of  the  partial  separation  of  estates,  and  the  property  thus  held  is 
subject,  regardless  of  the  matrimonial  community  system,  to  the 
rules  of  the  separation  of  estates.9  But  it  adopts  as  the  common 
law  rule  the  system  of  community  of  estates.  Disregarding  de- 
tails (which  are  of  course  open  to  differences  of  opinion)  and  con- 
sidering only  the  main  lines,  we  see  that  in  this  respect  the  "  social- 
ization "  of  law  has  not  gone  far  beyond  certain  tendencies,  already 
very  marked  in  France,  which  find  legal  recognition  in  the  decisions 
of  the  courts  or  in  proposed  legislation. 

(2)  Protection  of  Children.  —  The  same  may  be  said  of  the  provi- 
sions of  the  Swiss  Draft  concerning  the  paternal  power  and  the 

1  P.  26.  2  Ibid.,  p.  27.  3  Ibid.,  p.  27. 

1  Arts.  174-175  (Civ.  C,  Art.  167).         5  Art.  179  (Civ.  C,  Art.  171 ). 

6  Art.  188  (Civ.  C,  Art.  182).  » Art.  189  (Civ.  C,  Art.  183). 

«  Arts.  190-191  (Civ.  C,  Arts.  184,  185). 

9  Arts.  197-200  (Civ.  C,  Arts.  190-193).  Cf.,  on  this  remarkable  prin- 
ciple of  the  Swiss  Draft ,  and  on  the  comparison  that  may  be  drawn  be- 
tween this  and  the  similar  theory  of  the  German  Civ.  C,  Geny  in  "Bulle- 
tin de  la  Soeiete  d'Etudes  legislatives"  (1902). 

303 


§  6]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

protection  of  the  child.  The  Articles  *  governing  these  subjects 
hardly  do  more  than  extend  and  render  more  flexible  the  French 
law  of  1889  upon  forfeiture  of  the  paternal  power,  by  increasing 
(in  accord  with  a  tendency  already  pointed  out)  the  public  guard- 
ian's power  of  interference  and  the  range  of  his  discretion.2 
Without  declaring  a  forfeiture  of  the  paternal  power,  the  public 
guardian  may  withdraw  the  care  of  the  children  from  the  father 
and  the  mother  and  may  place  them  in  an  educational  institution 
or  in  a  family,  when  their  physical  or  intellectual  development  is 
endangered  or  when  they  are  neglected  or  abused.3  By  a  still 
more  radical  rule,  he  may  declare  the  parents  deprived  of  the  pater- 
nal power,  in  case  of  the  remarriage  of  the  father  or  the  mother,4 
or  in  the  exceptionally  serious  circumstances  intentionally  defined 
by  Article  296  in  very  broad  terms.5  "It  is  to  be  hoped,"  says  the 
'Message',  "that  the  public  guardian  will  act  with  enough  cir- 
cumspection not  to  make  it  necessary  to  define  his  powers  more 
closely.  A  more  explicit  definition  would  entail  many  difficulties 
in  other  ways,  which  we  now  escape  by  the  latitude  which  we  have 
left  to  governmental  intervention.  Moreover,  parents  may  appeal 
from  all  arbitrary  decisions  against  them."  6  In  all  this  there  is 
still  nothing  in  disagreement  with  the  fundamental  principles  of 
the  French  civil  law.  The  Swiss  Draft  goes  farther,  but  it  travels 
the  same  road. 

(3)  Illegitimate  Children.  —  The  limits  of  this  essay  oblige  us  to 
call  attention  more  rapidly  to  some  other  examples,  the  examina- 
tion of  which  leads  to  the  same  conclusions.  The  Swiss  Draft 
protects  the  natural  child  much  better  than  the  French  Code, 
with  regard  to  proof  of  paternity,7  the  effects  of  such  proof  upon 
the  parents,8  and  rights  of  succession.9  But  it  studiously  main- 
tains the  superiority  of  the  lawful  family  over  the  natural  family, 

1  Arts.  294  et  seq.  (Civ.  C,  Arts.  297  et  seq.). 

2  The  organization  of  public  guardianship  has  been  left  by  the  Draft  of 
the  Federal  Code  to  cantonal  legislation.  Its  function  is  similar  to  that  of 
the  "Guardianship  Court"  in  Germany. 

3  Art.  295  (Civ.  (\,  Art,  284). 

4  Art.  298  (Civ.  C,  Art.  286). 

b  Ail .  296  (Civ.C.,  Art.  285).  The  Code  says  :  "  If  the  father  and  mother 
arc  without  capacity  to  exercise  the  paternal  authority,  or  are  under  sus- 
pension of  civil  rights,  or  guilty  of  grave  abuse  of  authority  or  of  gross 
negligence,  they  shall  he  deprived  of  their  right  by  the  public  guardian." 

•  P.  37. 

7  Concerning  the  action  to  establish  paternity,  admitted  by  the  Draft, 
rf.  Arts.  316  et  seq.  (Civ.  ('.,  Arts.  308  et  seq.). 

8  With  regard  to  the  mother,  cf.  Arts.  312,  469,  and  332 ;  to  the  father, 
Arts.328and  332,  3'2'2  327  (Civ.  C,  respectively  Arts.  302,  461,  325,  and 
323,  325,  317  322). 

9  Art.  469  (Civ.  C,  Art.  461). 

304 


CHAP.    VII]  OLD   AND    NEW    CODES   CONTRASTED  [§  6 

and  it  avoids  the  idealism  which  in  this  respect  imperilled  the  law 
of  succession  of  the  Revolutionary  Convention.  The  final  draft 
has  remained  true  to  the  principle,  so  broad  and  yet  so  wise, 
proposed  by  Professor  Eugen  Huber  in  his  report  upon  the  pre- 
liminary draft:  "  It  would  be  a  flagrant  inconsistency,"  he  said, 
"  to  grant  the  natural  child  equality  of  rights  in  general  and  at  the 
same  time  to  deprive  him  of  the  rights  attaching  to  blood  ties. 
These  reasons  should  oblige  us  to  create  in  favor  of  the  natural 
child  a  legal  status,  the  inferiority  of  which  shall  not  rest  upon  the 
fact  of  illegitimate  birth,  but  shall  result  from  other  considerations, 
such  as  protection  due  to  marriage  and  to  legitimate  children."  * 

(4)  Succession.  —  This  same  tendency  is  evident  in  the  regula- 
tion of  the  system  of  inheritance.  The  Swiss  Draft  recognizes  the 
disadvantages  that  arise  from  conferring  a  right  of  succession  upon 
very  distant  relatives.2  Radically  different  in  this  respect  from 
the  French  Code,  it  limits  the  right  of  inheritance  properly  so 
called  to  the  grandparents,3  granting  to  the  great-grandparents, 
great-uncles,  and  great-aunts  only  a  life  interest.4  But  with  this 
exception,  it  accepts  principles  very  analogous  to  our  own.  It 
establishes  liberty  of  disposing  by  will,  combining  it  with  the  prin- 
ciple of  the  compulsory  reserve  for  the  heirs.  It  even  shows  itself 
more  solicitous  of  the  family  than  the  French  Code,  by  classing 
brothers  and  sisters  among  the  heirs  sharing  in  the  reserve.5  We 
should  add,  however,  that  the  Draft  sanctions  the  disinheritance, 
for  definite  causes  and  in  the  cases  expressly  defined  by  law,  of 
those  entitled  to  benefit  in  the  reserve.6 

(5)  Property.  —  Partial  concessions  to  the  new  principles  and 
maintenance  of  the  essentials  of  the  basic  principles :  such  are 
what  we  see  when  we  turn  to  the  theory  of  property  and  the  regula- 
tion which  it  has  received  at  the  hands  of  the  authors  of  the  Swiss 
Draft.  The  definition  in  the  French  Code  has  been  often  criti- 
cized :  "  Ownership  is  the  right  to  enjoy  and  dispose  of  things  in 
the  most  absolute  manner,  provided  they  are  not  used  in  a  way 
contrary  to  law  or  regulations."  7  But  this  definition,  as  inter- 
preted to-day,  is  not  a  whit  more  individualistic  than  that  of  the 
Swiss  Draft :    "  The  owner  of  a  thing  has  the  right  to  do  with  it 

1  Cf.  'Message',  p.  40. 

2  Ibid.,  p.  49. 

3  Cf.  the  diagrammatic  table  of  relationship,  annexed  to  the  official 
edition  of  the  Draft. 

4  Cf.  Arts.  465-489  and  app.  II  of  the  Draft. 
•r>  Arts.  47K-479  (Civ.  C,  Arts.  471.   172). 

6  Arts.  482^84  (Civ.  C,  Arts.,  477-479). 

7  Art.  544,  trans,  by  Cachard  (London,  1S95). 

305 


§  6]  PART   II      NATIONAL    CODIFICATION  [Chap.    VII 

as  he  pleases,  within  the  limits  set  by  the  law."  1  When  these  two 
definitions  are  combined  with  the  theory  of  the  misuse  of  a  right, 
they  lead  to  an  almost  complete  identity  of  principles.  It  matters 
little  that  in  certain  particular  cases  the  Swiss  legislator  later 
limits  the  rights  of  the  owner  in  the  interests  of  society  far  more 
strictly  than  French  law  has  ever  done.  These  limitations,  which 
are  especially  concerned  with  the  ownership  of  water  courses, 
springs,  and  with  the  grants  of  water  rights,  are  justified  by  the 
special  conditions  affecting  these  matters  and  not  by  any  general 
theory  of  the  rights  of  society  over  the  objects  of  ownership.2 

(6)  Contracts.  —  The  Swiss  Draft  does  not  touch  the  theory  of 
contracts.  The  Confederation  will  continue,  after  the  adoption  of 
the  Federal  Civil  Code,  to  be  governed  provisionally  in  this  matter 
by  the  Federal  Code  of  Obligations  of  1881,  the  revision  of  which  is 
already  being  undertaken.  But  it  is  already  evident  that,  in  this 
revision,  the  French  principle  of  liberty  of  contract  will  be  regarded 
as  unassailable,  and  that  the  rule  of  the  autonomy  of  the  will  is  to 
be  taken  as  point  of  departure,  as  was  done  in  the  German  Code. 
No  doubt,  after  the  example  set  by  the  German  legislator,  its 
application  will  be  limited  by  a  certain  judicial  power  of  super- 
vision ;  no  doubt  the  rule  will  not  be  accepted  in  its  strictly  classic 
sense.  It  will  not  be  said  that,  outside  of  questions  of  public 
policy,  all  private  rights,  especially  those  based  upon  jural  acts 
affecting  property,  have  their  basis  in  a  presumed  intention  of  the 
individual.3  But,  while  recognizing  that  subjective  right  has  no 
purely  individual  foundation,  the  rule  of  liberty  of  contract  will, 
as  in  the  German  Civil  Code,  be  carefully  preserved.4  And  thus, 
once  again,  the  old  principles  of  the  French  Code  will  be  faithfully 
observed. 

1  Art.  635  (Civ.  C,  Art.  641  is  identical  in  sense). 

2  Cf.  Art.  699,  "The  owner  of  springs,  water  sources  or  brooks  which 
have  no  utility  to  him,  or  a  utility  small  in  proportion  to  their  value,  is 
bound,  upon  full  compensation,  to  yield  them  up  to  public  use  for  drink- 
ing purposes,  water  supply  or  other  works  of  public  interest."  (Civ.  C, 
Art.  691.)  Cf.  Ails.  933  and  935,  granting  to  the  Confederation  a  pref- 
erential right  in  the  matter  of  water  concessions.  Cf.  besides  Arts.  693, 
696,  698  (Civ.  C,  Arts.  705,  70S,  710)  and,  from  another  point  of  view, 
Ail .  (ISO  (Civ.  C,  Art.  691)  according  to  which  the  owner  is  obliged  to  allow, 
upon  payment  of  full  compensation,  the  construction  across  his  land  of 
aqueducts,  drains,  gas-pipes,  elect  ri"  conduits  above  or  below  ground, — 
provided,  at  least,  that  it  is  impossible  to  carry  out  such  work  without 
utilizing  his  property.     Cf.  also  Arts.  681-682  (Civ.  C,  Arts.  692-693). 

3  ( !oncerning  t  lie  theory  <>!'  the  autonomy  of  the  will  in  the  German  Civ. 
('.,  cf.  Saleille8,  "  Introduction  a  l'fitude  du  droit  civil  allemand",  pp.  44 

For  criticism  of  the  classic  theory,  cf.  particularly  Duguit,  "L'Etat, 
le  Droit  objectif  et  la  loi  positive  ",  pp.  140  et  seq. 

4  I  'pon  t  he  importance  of  this  rule  in  the  German  C,  cf.  Saleilles,  op.  cit., 
p.  45. 

306 


CHAP.    VII]  OLD   AND   NEW   CODES   CONTRASTED  [§  7 

§  7.  Conclusion.  —  "  It  is  better  to  preserve  what  it  is  not 
necessary  to  destroy."  l  This  common-sense  maxim  which  the 
author  of  the  Preliminary  Report  on  the  French  Civil  Code  drew  as  a 
lesson  from  the  example  of  the  abortive  projects  of  the  Revolution, 
should,  after  a  century,  serve  as  the  guide  for  those  now  engaged 
in  the  serious  and  dangerous  problem  of  the  revision  of  the  French 
Code.  That  this  Code  is  to-day  one  of  the  oldest  codes  in  the  world 
is  of  little  matter,  if  the  examples  of  junior  legislations  reveal  to 
us  the  vitality  of  its  essential  principles ;  if  the  re-awakened  science 
of  interpretation  is  able  to  set  the  life-giving  sap  circulating  within 
the  ancient  trunk.  This  century-old  masterpiece,  whose  success 
was  once  assured  by  its  moderation,  its  respect  for  French  traditions, 
and  its  spirit  of  compromise,  may  perhaps  yet  enjoy  a  long  life, 
if  a  few  improvements  in  detail  remedy  certain  defects,  and 
if  authors  and  judges  pursue  their  task  of  progress.  Private  law  in 
France  needs  no  new  code :  its  future  depends  upon  the  broadening 
and  strengthening  of  our  methods. 

1  Fenet,  Vol.  I,  p.  481. 


307 


11 


PART   II      NATIONAL    CODIFICATION  [Chap.    VIII 


Chapter  VIII 
THE   ITALIAN  CIVIL  CODE  OF   1868 
By  Icilio  Vanni  * 


§  1.     The  Motives  for  Codification. 

§  2.  International  Status  as  regu- 
lated in  the  Code. 

§  3.  Ecclesiastical  Relations  as 
regulated  in  the  Code. 

§  4.  Law  of  Persons  as  regulated  in 
the  Code. 


§  5.     Property  under  the  Code. 
§  6.     Contract  under  the  Code. 
§  7.     The     Code     as     a    National 
Achievement. 


§  1.  The  Motives  for  Codification.  —  Legislative  unity  in  Italy 
came  inevitably  as  a  corollary  of  political  unity.  By  merging  all 
interests  and  activities,  national  codification  was  destined  to  solidify 
political  union,  and  in  a  large  measure  to  establish  that  spiritual 
bond  between  law  and  government  without  which  a  material  bond 
is  apparent  rather  than  real. 

Yesterday  Italy  was  a  divided  and  subject  people.  To-day  her 
sons,  free  and  united,  are  brothers  both  in  nationality  and  in  law. 
Justice,  too,  called  for  uniformity;  for  civil  equality  had  in  fact 
been  lost  in  the  aimless  labyrinth  of  codes,  laws,  and  customs  then 
governing  in  various  ways  the  most  essential  functions  of  society. 
Pisanelli  declared  that  this  diversity  made  Italians  confused  and 
doubtful  about  their  own  law,  so  that  they  seemed  almost  like 
foreigners  to  each  other.2  He  might  have  added  that  the  law  of  an 
independent  people  could  not  remain  as  it  then  was,  largely  in 

1  [This  Chapter  is  translated,  with  a  few  omissions,  from  an  address  read 
before  the  University  of  Perugia,  June,  1878,  by  Icilio  Vanni,  printed  in 
his"Saggi  di  filosofia  sociale  egiuridica"  (Bologna,  1906,  p.  128;  Zanichelli), 
under  the  title  "I  progressi  della  legislazione  civile  in  Italia  dopo la  rivolu- 
zione." 

The  author  (1855-1903)  was  professor  of  law  successively  at  the  Univer- 
sities of  Perugia,  Pavia,  Parma,  Bologna,  and  Rome.  His  chief  work  was 
in  the  philosophy  of  law;  but  among  his  other  works  may  be  noted: 
"(ili  studi  di  II.  S.  Maine"  (1892),  and  "I  giuristi  della  scuola  storica" 
etc.  (1885).  His  "Lezioni  di  filosofia  del  diritto"  (3d  ed.,  1908),  is  trans- 
lated into  English  as  Vol.  VI  of  the  "Modern  Legal  Philosophy  Series" 
(Boston) ;  the  editorial  preface  to  that  volume  furnishes  a  full  critique  of 
his  work.  —  Ed.] 

2  "Dei  progressi  del  diritto  civile  in  Italia  nel  secolo  XIX"  (Milan, 
1872). 

308 


Chap.   VIII]  ITALIAN   CODES  [§  1 

codes  wherein  survived  the  old  spirit  of  despotism  in  every  line, 
with  principles  that  were  in  flagrant  violation  of  the  spirit  of  the 
new  political  order.  Private  law  was  too  much  influenced  by 
political  law  to  remain  unaltered  while  the  fundamental  principles 
of  the  latter  were  breaking  down.  Alike  in  the  nation's  aspira- 
tions, convictions,  manners,  and  needs,  great  advances  had  taken 
place.  To  this  a  legal  expression  needed  to  be  given,  in  a  code 
which  would  bring  into  adjustment  the  actual  conditions  of  society 
over  which  it  was  called  to  preside.  I  shall  explain  briefly  what 
this  forward  movement  was. 

Future  generations  writing  the  history  of  the  1800  s  will,  I  think, 
assign  as  its  chief  characteristic  a  certain  tendency  towards  uni- 
versality. We  are  witnessing,  but  on  a  far  grander  scale  and  more 
consciously,  almost  a  repetition  of  that  phenomenon  that  effected 
so  profound  a  revolution  in  the  law  of  Rome,  the  "  jus  gentium." 

In  the  first  place,  the  rapid  extension  of  the  material  interchange 
of  products  and  the  intellectual  exchange  of  ideas  and  opinions ;  the 
wonderful  development  of  trade  and  credit ;  the  commercial  treaties 
that  have  broken  down  the  prohibitive  and  protectionist  walls,  — 
harmful  alike  to  the  economic  and  intellectual  life  of  nations,  which 
the  law  of  solidarity  designed  for  true  brotherhood  ;  the  increased 
facility  of  international  relations;  the  new  principles  in  force  in 
international  law;  a  foreign  policy  more  unselfish  and  less  in 
sympathy  with  the  idea  of  inevitable  antagonism  between  nations  ; 
and,  lastly,  a  loftier  conception  of  man  and  humanity  that  has  lent 
enormous  impulse  to  the  idea  of  a  "  communio  juris  "  among 
nations  — ■  such  facts  as  these  have  produced  the  immediate  result 
that  the  civil  law  of  the  various  countries  (especially  with  regard 
to  judicial  practice)  tends  toward  a  certain  character  of  equality, 
so  that  it  may  be  called  almost  international.  This  is  logical. 
Solidarity  means  community  of  life,  and  in  the  legal  sphere  com- 
munity of  life  is  the  reason  for  equality. 

Secondly,  the  revolution  in  Italian  public  law,  the  triumph  of  the 
principle  of  liberty  of  conscience,  and  the  deliverance  of  the  State 
from  all  ecclesiastical  interference,  were  bound  to  lead  to  the 
secularization  of  the  law.  Law  was  bound  to  be  released  from  the 
meshes  of  a  net  where  an  unnatural  alliance  between  civil  and  reli- 
gious authority  had  held  it  fast,  often  making  it  a  pious  tool  for 
the  salvation  of  souls.  The  two  cardinal  principles,  equality 
before  the  law  and  personal  liberty  —  sacred  conquests  of  the 
political  revolution  —  were  naturally  to  influence  much  of  the 
law  of  persons. 

309 


§  1]  PART   II      NATIONAL    CODIFICATION  [Chap.    VIII 

And,  lastly,  there  was  need  to  readjust  the  law  to  the  economic 
revolution.  Italy  was  to  progress  steadily  along  the  path  of  reform 
towards  which  the  political  economy  of  Adam  Smith  (through  the 
eloquence  of  Pellegrino  Rossi)  had  directed  the  attention  of  legisla- 
tion. Enactments  that  had  hampered  the  circulation  of  personal 
property  had  to  be  repealed,  and  those  that  had  encouraged  it  had 
to  be  strengthened. 

Thus  the  progress,  brought  about  by  the  political  revolution  and 
calling  for  legal  expression  on  the  eve  of  codification,  covered  in  its 
aim  international  solidarity,  the  secularization  of  the  law,  the 
autonomy  of  the  individual,  and  the  organization  of  the  law  of 
property  or  economic  law  upon  the  basis  of  liberty. 

Has  the  Civil  Code  of  1868  satisfied  all  these  demands?  Has  it 
met  the  justifiable  hopes  of  Italian  science  and  civilization?  To 
reply  satisfactorily  to  so  serious  and  difficult  a  question  we  should 
have  to  examine  the  whole  Code  in  detail  and  elaborate  a  compara- 
tive study  of  it ;  we  should  have  to  turn  to  its  sources  in  prior  codes 
and  laws,  and  note  the  survivals  of  the  past  and  the  innovations 
that  have  been  introduced,  weighing  them  both  from  the  point  of 
view  of  history  and  of  actual  conditions  so  as  to  determine  whether 
other  and  better  rules  ought  to  and  can  be  added.  This  is  clearly 
impossible  in  the  time  at  our  disposal,  and  I  shall  therefore  merely 
summarize  the  salient  points  of  progress  reflected  in  the  Code. 
By  a  consideration  of  their  history  and  of  present  conditions  I  may 
be  able  to  point  out  the  way  of  future  progress. 

§  2.  International  Status  as  regulated  in  the  Code.  —  First,  let 
us  consider  the  international  relations  of  individuals. 

Of  itself  it  marks  a  great  advance  to  have  satisfied  the  want,  so 
deplored  by  science,  in  the  legal  systems  of  other  countries,  by 
codifying  this  subject.  Principles  of  a  very  general  character  were 
compressed  into  a  few  peremptory  rules  governing  the  conflict  of 
laws  in  international  relations.  These  rules  cover  the  status  and 
capacity  of  persons,  family  relations,  the  ownership  of  personal 
and  real  property,  the  substance  and  form  of  acts  "  inter  vivos  " 
and  of  wills,  intestacy,  the  substance,  proof  and  effect  of  contracts, 
jurisdiction,  procedure,  and  the  execution  of  judgments.  But 
if  we  consider,  too,  the  nature  itself  of  these  rules,  the  Italian 
legislator  appears  deserving  of  still  greater  praise,  for  he  has  wisely, 
generously,  frankly,  and  directly  moved  toward  a  liberal  reform 
and  so  1ms  solemnly  sanctioned  all  the  logical  consequences  of  the 
ideal  of  ;i  community  of  law  amongst    nations. 

The  extension  of  the  principle  of  nationality  ("  personal  status  ") 

310 


Chap.  VIII]  ITALIAN  CODES  [§  2 

even  to  the  law  of  inheritance  marked  in  legal  history  the  triumph 
of  those  doctrines  so  warmly  defended  by  modern  German  jurists. 
With  the  exception  of  the  Belgian  Code  of  1864  it  was  a  triumph  un- 
precedented in  modern  codification.  Whether  because  the  law  of 
inheritance  may  be  regarded  as  an  aspect  of  family  law,  or  whether 
because  the  estate  in  its  unity  ("  universum  jus  ")  may  be  said  to 
represent  the  person  of  the  deceased,  it  has  at  any  rate  been  shown 
that  the  law  of  inheritance  is  essentially  governed  by  the  principle 
of  personal  status.  Out  of  the  spiritual  unity  of  the  family  and  the 
theoretical  unity  of  the  deceased's  estate  arises  therefore  the  im- 
possibility of  the  law's  conceiving  a  division  of  the  estate  and  of 
regulating  its  distribution  differently  according  to  the  situs  of  the 
property, — -as  in  fact  happens  under  the  rule  of  "lex  rei  sitae"  or 
"  tot  hereditates  quot  territoriae."  It  was  no  overstatement  for 
Pisanelli,  when  he  reported  the  draft  of  the  Code,  to  say  that 
modern  civilization  would  feel  a  deep  indebtedness  to  Italian  law 
by  reason  of  the  new  rule ;  for,  as  it  operated  without  dependence 
upon  international  reciprocity,  it  would  serve  as  a  worthy  example 
and  stimulus  to  other  nations.  Such  a  principle,  added  the  cele- 
brated Minister,  nobly  epitomized  the  temper  and  character  of  the 
new  legislation. 

Yet,  like  the  other  rules  commanding  recourse  to  personal  status, 
this  one  has  not  escaped  severe  criticism  for  having  made  nationality 
rather  than  domicile  the  criterion.  Most  authors,  preferring  the 
latter,  maintain  that  a  person  takes  on  his  distinctive  and  inherent 
qualities  where  he  is  domiciled,  because  of  a  natural  and  usual 
relationship  between  the  domicile  and  the  activities  of  the  individ- 
ual.1 I  cannot,  at  least  so  unreservedly,  approve  this  criticism, 
because  I  think  that  this  problem  is  far  from  having  been  scien- 
tifically solved.  On  the  other  hand,  I  regret  very  much  that,  though 
illogical  and  unanimously  condemned  by  theory,  the  old  rule 
"mobilia  sequuntur  personam",  has  been  retained  instead  of 
assimilating  (with  necessary  limitations)  personal  property  to  real 
property  and  subjecting  it  to  the  law  of  the  locality  where  situated.2 

1  Cf.  a  restatement  of  the  criticism,  with  the  usual  argument  s,  by  Gabba, 
"Gli  articoli  6-12  del  Titolo  Preliminare  del  Codice  civile  italiano" 
(Florence,  1868).  The  opposite  doctrine  lias  its  adherents;  cf.  notably  : 
Brocher,  "Theorie  du  droit  international  prive",  in  *'  Revnc  de  droit  inter- 
national et  de  legislation  comparee  (1881),  nos.  Ill  and  IV;  Id.  (1873), 
no.  Ill;  Laurent,  "Principes  du  droit  civil",  no.  87;  Lomonaco,  "Diritto 
civile  inter nazionale",  I,  3. 

2  Cf.  Savigny,  "Sistema  del  diritto  romano",  §366;  Eng.  trans,  by 
William  Guthrie,  "Private  International  Law  and  the  Retrospective  Opera- 
tion of  Statutes"  (2d  ed.,  Edinburgh,  1SS0),  §  :im;  von  Bar,  "Das  inter- 
nationale  Privatrecht",  pp.  200  et  seq. ;    Gabba,  loc.  cit. 

311 


§  2]  PART   II      NATIONAL    CODIFICATION  [Chap.    VIII 

However,  the  provision  by  which  foreigners  have  been  placed 
on  the  same  level  as  nationals  in  respect  to  the  enjoyment  and 
exercise  of  civil  rights  without  obligation  of  any  sort  as  to  residence 
has  been  unreservedly  commended.  I  do  not  know  whether  that 
reform  was  primarily  a  principle  of  justice  or  an  act  of  generosity  : 
of  justice,  because  private  rights  are  an  attribute  of  man  as  man, 
not  by  reason  of  his  citizenship,  but  by  reason  of  his  own  nature ; 
of  generosity,  because,  by  discarding  diplomatic  reciprocity,  Italy 
was  first  among  nations  to  prove  to  the  civilized  world  her  faith 
in  the  triumph  of  international  justice  and  in  the  solidarity  of  the 
human  family.  Truly  it  was  remarkable  that  a  people  who  but 
the  day  before  had  been  looked  upon  as  a  stranger  amongst  nations 
should,  by  almost  its  first  independent  act,  invoke  the  great  princi- 
ples of  the  new  law  of  Europe. 

§  3.  Ecclesiastical  Relations  as  regulated  in  the  Code.  —  When 
we  turn  now  to  the  reforms  touching  the  emancipation  of  the  law 
from  all  ecclesiastical  elements,  we  need  recall  only  the  principal 
and  most  far-reaching  of  them,  namely  the  secularization  of  mar- 
riage. 

The  Church,  profiting  by  the  ascendency  which  it  had  gained  in 
the  darkness  of  the  Middle  Ages,  and  by  its  power  to  preside,  as 
minister  of  the  sacraments,  at  birth,  marriage,  and  death,  had 
gradually  come,  through  the  toleration  of  civil  authority,  to  absorb 
into  the  formality  of  the  rite  the  entire  civil  element  of  marriage 
resulting  from  its  contractual  character.  Later  it  succeeded  in 
taking  marriage  over  into  its  exclusive  jurisdiction,  and,  on  the 
ground  of  their  being  kindred  matter,  usurped  jurisdiction  over  all 
questions  of  law  relating  to  the  three  main  stages  in  the  civil  life 
of  the  individual.  By  these  means  (and  their  importance  is  not 
yet  generally  recognized)  the  Church  contrived  to  dominate  civil 
society  and  to  assure  its  own  supremacy  over  the  State.  But  the 
modern  State  emerged  from  its  struggle  with  the  Church  fully 
possessed  of  a  legal  consciousness  and  tainted  by  that  original  sin 
of  freedom  of  thought.  Vigorously  and  successfully  it  commenced 
In  reassert  its  claims. 

The  history  of  civil  marriage  in  Italy  is  well  known.  It  was 
int  roduced  through  the  French  conquest,  and  was  accepted  without 
opposition  by  the  people,  though  attacked  by  the  clergy.  Because 
of  its  origin  it  fell  under  the  dislike  of  the  Restoration  government, 
by  whose  unwise  reactionary  policy  it  was  almost  openly  abolished 
in  all  the  Italian  States.  Later,  when  Liberation  came,  it  was 
tried  with  favorable  results  in  this  very  province  of  Umbria,  so 

312 


Chap.   VI 1 1]  ITALIAN   CODES  [§  3 

long  a  theocracy.  It  appeared  in  all  the  government  and  parlia- 
mentary drafts  of  the  new  Code;  its  final  adoption  solemnly  vin- 
dicated the  claim  of  the  freedom  of  conscience  and  of  civil  authority 
over  this  fundamental  act  in  the  life  of  civilized  society. 

There  is  no  need  to  dwell  here  upon  the  justification,  importance, 
and  salutary  effects  of  something  that  may  be  regarded  as  common 
knowledge.  I  shall  not,  therefore,  stop  to  controvert  an  opinion 
which  found  expression  in  a  counter-proposal  introduced  by  Repre- 
sentatives Andreucci  and  Georgini.  This  opinion,  which  has  been 
defended  even  by  able  and  otherwise  very  liberal  jurists,  holds  that 
the  State's  assumption  of  an  exclusive  right  to  give  legal  recogni- 
tion and  life  to  marriage  is  a  usurpation  and  restraint  of  the  liberty 
of  the  individual.  In  his  learned  and  eloquent  Report  to  the 
Senate,  Vigliani  has  already  answered  this  contention.  It  seems 
more  opportune  for  me  to  point  out  two  serious  defects  of  the  Code 
in  this  matter  which  are  a  clear  step  backward  from  the  Napoleonic 
legislation  and  the  needs  of  Italy. 

Individual  liberty  was  thought  to  have  been  respected  by  aban- 
doning the  prohibition  against  celebrating  the  church  ceremony 
prior  to  the  civil  marriage  and  by  the  punishment  of  the  priest  who 
thus  performed  the  rite,  —  provisions  which  exist  in  the  French 
Criminal  Code.  The  intention  was  to  place  the  parties  upon  their 
own  responsibility,  trusting  that  the  moral  sentiment  of  the  people, 
the  interest  of  the  contracting  parties  and  of  the  family,  as  well  as 
the  good  intentions  of  the  Church,  would  be  sufficient  guaranty  of 
compliance  with  the  civil  law.  At  least  it  was  thought  premature 
in  the  then  state  of  affairs  to  establish  for  a  theoretical  evil  penal- 
ties that  might  prove  offensive  to  religious  liberty. 

But  the  theoretical  evil  became  a  fact  shamefully  real  and  present. 
From  every  part  of  Italy  arises  a  cry  of  sorrow  and  indignation  at 
the  appalling  figures  that  prove  the  continual  and  flagrant  violation 
of  the  law  and  of  the  authority  of  the  State.  Everywhere  we  see 
the  demoralizing  rivalry  of  the  Church  ceremony,  "  that  secondary 
rite  so  suited  to  the  easy  conscience  of  the  pseudo-gentleman", 
amounting  to  concubinage  lightly  veiled  by  an  apparent  legality. 
Witness  the  immorality  that  is  abroad,  in  the  desertions  and  bigamy 
that  are  facilitated  and  practised  with  impunity;  likewise  the 
desperate  future  of  innumerable  unlawful  alliances,  so  often 
doomed  to  misery  and  dishonor.  Behind  how  many  of  these 
figures  lies  a  long  history,  some  pitiful  tragedy,  ending  in  suicide, 
prison,  the  reformatory,  or  the  brothel  !  In  the  single  year  of 
1877,  in  the  province  of  Rome  alone,  it  was  estimated  that  as 

313 


§  3]  PART   II      NATIONAL    CODIFICATION  [Chap.    VIII 

against  4301  marriages  celebrated  with  the  double  ceremony,  no 
less  than  2000  marriages  were  purely  religious.  The  clamor  of 
public  conscience  was  heard  in  legislative  and  executive  chambers. 
As  far  back  as  1873  Minister  Vigliani  presented  a  law  aimed  at  the 
suppression  of  the  most  serious  of  these  abuses,  —  the  same 
Vigliani  (let  it  be  said  to  his  credit)  who  had  opposed  in  the  Senate 
the  adoption  of  a  penal  provision.  Nor  did  the  legal  profession 
shirk  its  part  in  this  labor.  Eminent  jurists  and  authors,1  with 
learning  and  energy  worthy  of  the  cause,  raised  indignant  voices  to 
support  and  justify  the  urgent  necessity  of  such  a  provision  and 
to  rebut  the  legal  objections  with  which  Carrara  attacked  it.2 

The  argument  of  these  authorities  can,  I  think,  be  thus  summa- 
rized. In  the  first  place,  the  State  is  under  the  obligation  to  watch 
over  the  rights  and  to  render  the  condition  of  future  generations 
secure  before  the  law ;  to  guarantee  the  safety  and  tranquillity 
of  the  family  and,  by  so  doing,  the  most  vital  interests  of  society ; 
to'  strengthen  and  safeguard  public  morals  endangered  by  this 
custom  of  a  marriage  ceremony  exclusively  religious.  The  State 
must  guard  against  a  custom  that  offers  opportunities  and  incentives 
for  dishonorable  conduct  and  under  the  guise  of  good  morals 
destroys  public  understanding  of  the  legal  nature  of  matrimony  and 
its  essentially  moral  nature.  Many  are  thus  turned  away  from 
the  only  true  and  honorable  state  of  marriage,  which  is  that  sanc- 
tioned alike  by  moral  considerations  and  the  general  law,  by 
conscience  and  by  statute.  In  the  second  place,  the  nature  of  the 
State,  and  therefore  its  duties,  gives  it  the  right  to  regulate,  without 
interference  or  opposition,  the  form,  conditions,  and  effects  of  so 
important  an  ethico-juridical  institution  as  marriage,  and  conse- 
quently to  command  respect  for  the  principles  upon  which  that 
institution  is  founded  and  to  punish  their  violation  as  embracing 
all  the  elements  of  a  crime.  Even  if  there  were  no  other  hurt  or 
peril,  the  moral  sense  would  be  deeply  offended  by  the  contradic- 
tion between  the  presumed  and  the  real  state  of  affairs,  when  mar- 
riage appears  valid  and  the  children  legitimate  to  the  consciences  of 
believers  in  the  Church,  but  void  and  the  children  bastards  accord- 
ing to  secular  law.  The  mere  existence  of  so  lamentable  an 
anomaly  shocks  our  intelligence  and  our  conscience 

1  C'f.  f'aflelhtti,  "Lo  State  c  il  matrimonio  ecclesiastico",  "Nuova 
A_ntologia"  (May,  1X77)  ;  Filomu&i-Guelfi,  "II  matrimonio  religioso  e  il 
diritto"  (Rome,  1874) ;  and  Gabba,  "I  due  matrimoni  civile  e  religioso 
n<ir  odierno  diritto  italiano"  (Pisa,  1876). 

"Opusculi",  "Le  fare  concubine",  and  "II  delitto  e   il   matrimonio 
cfflcsiastioo",  Vols.  IV,  pp.  471    518  and  V,  pp.  107-144. 

314 


Chap.  VIII]  ITALIAN  CODES  [§  3 

These  reasons  necessitate  putting  an  end  once  for  all  to  such  ;i 
state  of  affairs.  Italy  must  follow  the  example  of  France,  Belgium, 
Germany,  and  Switzerland.  The  proposed  law  must  be  voted 
without  adding  to  a  delay  which  I  believe,  with  Padelletti,  to  be 
attributable  to  the  narrow  jealousies  of  politics,  the  obstinacy  of 
conscienceless  theorists,  and  the  intrigues  of  the  clergy.1 

Less  urgent  and  less  ready  for  adoption  by  the  nation  is  the 
reform  of  the  indissolubility  of  marriage  as  established  by  the  Code. 
Legal  science  called  for  this  reform,  not  indeed  as  an  ideal  but  as  a 
sad  necessity,  the  lesser  of  two  evils.  Yet  even  here  it  met  with 
opposition.  The  Code  has  justly  been  accused  of  inconsistency, 
because  after  having  prepared  the  ground  and  the  occasion  for 
divorce,  by  secularizing  marriage  and  recognizing  its  contractual 
character,  it  then  rejected  it.  The  influence  of  the  doctrines  of  the 
Church  has  thus  far  been  strong  enough  to  exclude  absolute  divorce ; 
but  now  that  its  influence  has  decreased,  we  may  hope,  wrote 
Gabba,2  that  absolute  divorce  will  soon  be  the  law  common  to 
civilized  Europe.  And  this,  he  declared,  would  be  one  of  the  most 
brilliant  victories  of  scientific  over  theocratic  law.  This  hope  has 
its  serious  legal,  moral,  and  political  reasons  as  well.  Though 
marriage  is  a  contract  "  sui  generis  "  and  possessing  a  peculiar 
form,  scope,  and  character,  yet  it  remains  a  contract.  Absolute 
indissolubility  of  the  "  vinculum  juris",  can  never,  therefore, 
properly  be  predicated  of  the  state  of  facts  resulting  from  a  con- 
tractual expression  of  will ;  to  declare  marriage  indissoluble  is  an 
obvious  legal  inconsistency.  To  perpetuate  in  a  purely  abstract, 
formal,  and  external  manner  a  bond  that  has  been  dissolved  in 
substance,  even  after  it  has  been  possible  to  ascertain  legally  the 
causes  of  the  disunion,  is  a  restraint  upon  the  liberty  of  the  individ- 
ual ;  it  is  a  tyranny  that  robs  the  married  parties  of  the  right  to  be 
the  masters  of  their  own  persons  and  that  exposes  them  (and,  after 
all,  law  is  made  for  the  benefit  of  man)  to  the  disorder  that  comes  of 
unlawful  union.  Surely  this  is  not  conducive  to  good  morals, 
while  to  deny  divorce  to  the  members  of  a  religious  faith  that 
accepts  it  is  to  offend  involuntarily  those  consciences  that  have 
declared  themselves  free. 

It  seems  to  me  (I  was  going  to  say  that  it  has  always  seemed  to 
me,  and  that  is  proof  certain  that  I  am  not  a  convert  to  the  cause 
of  divorce)  that  beneath  the  theory  of  the  indissolubility  of  inar- 

1  This  address  was  delivered  when  Italian  law  had  not  yet  to  lament  the 
premature  loss  of  one  of  its  most  able  scholars,  Gnido  Padelletti. 

2  "Studi  di  legislazione  comparata"  (.Milan,  1861),  p.  238. 

315 


§  3]  PART   II      NATIONAL   CODIFICATION  [Chap.    VIII 

riage  lies  concealed  the  old  notion  of  the  omnipotence  of  law,  —  that 
old  idea  that  the  law  is  what  gives  existence  to  this  juridical  rela- 
tion. The  truth  is  that  it  conies  into  existence  through  the  act  of 
the  parties,  by  the  very  nature  of  the  act  and  through  the  intent 
of  the  parties  who  create  the  relation  in  fact.  Law  merely  defines, 
recognizes,  and  regulates  it.  When  for  some  serious  cause  the  bond 
creating  the  sanctuary  of  the  family  is  loosed  apart,  the  legal  rela- 
tion or,  if  you  will,  its  substratum  ceases  to  exist.  No  doubt 
divorce  is  repugnant  to  the  nature  and  the  ethical  idea  of  marriage ; 
but  the  very  fact  that  marriage  is  a  moral  bond  is  why  its  dissolu- 
tion must  be  left  free,  a  matter  for  the  personal  conscience.  Indis- 
solubility of  marriage  cannot  be  imposed  by  law  as  a  principle,  for 
law  does  not  govern  marriage  within  a  fixed  and  external  world, 
but  amid  the  changing  and  contingent  facts  that  constitute  its 
sphere  of  action. 

Though  many  believe  the  contrary,  there  is  no  provision  for  the 
interests  of  the  children  of  such  a  union.  Besides  the  fact  that 
the  motives  for  denying  divorce  grow  less  where  there  are  no  chil- 
dren, and  conversely  that  like  considerations  should  debar  widowers 
from  remarrying,  the  want  of  interest  which  the  law  demonstrates 
for  the  offspring  stands  out  clearly  enough  upon  our  stopping  to 
consider  how  much  more  pitiable  their  condition  is  under  the 
hybrid  state  of  legal  separation  than  under  absolute  divorce. 
For,  whereas  after  an  absolute  divorce  the  children  could  live  in  a 
regularly  constituted  family,  after  separation,  in  the  majority  of 
cases,  they  witness  the  elevating  drama  of  an  irregular  relation- 
ship.1 

If  we  of  the  Latin  race  who  have  rejected  divorce  consider  its 
effects  in  the  other  countries  of  Europe  and  in  North  America,  we 
shall  have  further  reason  to  confess  that  it  is  an  institution  belong- 
ing to  races  where  there  is  a  higher  standard  of  marital  fidelity, 
where  the  family  tie  is  stronger  and  where  morals  are  higher.  And 
this  is  easily  explained.  Divorce  is  a  guaranty  of  fidelity  because 
in  practice  at  least  it  constitutes  the  real  and  effective  penalty  of 
adultery.  Such  considerations  should  have  great  weight  in  the 
minds  of  those  who  in  a  practical  manner  would  raise,  however 
little,  the  low  state  of  our  public  morals.2 

1  This  reason  lias  been  well  set  forth  by  Legouve  and  by  Pellctan  and  is 
decisive  for  me. 

2  J.  Tissot,  "Le  marriage,  la  separation  et  le  divorce"  (Paris,  1868); 
also  the  article  published  in  the  "Monitore  dei  Tribunali"  (Milan,  1868), 
no.-;.  I:;,  1 1.  by  (lie  eminent  Emilio  Brusa,  now  professor  at  the  University 
of  Amsterdam.  Within  the  ten  years  following  (his  hook  the  literature 
of  divorce  was  enriched  by  many  important  publications.     However,  the 

316 


Chap.    VI 1 1]  ITALIAN   CODES  [§  4 

A  consequence  of  the  adoption  of  civil  marriage  was  to  remove 
the  impediments  belonging  exclusively  to  any  one  religion,  ^'hat- 
ever  contrary  opinion  may  have  been  pronounced  by  the  Courts 
(which  have  fallen  into  the  serious  error  of  believing  that  the  law 
must  enforce  the  observance  of  the  Church  prescriptions),  the 
letter  and  the  spirit  of  the  Code  restored  to  those  who  had  previ- 
ously been  fettered  by  the  clergy  their  legal  capacity  with  respect 
to  marriage,  guardianship,  adoption,  and  legitimation.  As  in 
marriage,  so  in  respect  to  births  and  deaths  the  Church  has  lost  its 
right  to  intervene.  One  of  the  main  benefits  of  the  Civil  Code  (as 
Vigliani  said  on  presenting  the  draft  of  the  Code)  has  been  without 
a  doubt  to  place  the  register  of  civil  status  under  the  charge  of 
the  government. 

§  4.  Law  of  Persons  as  regulated  in  the  Code.  —  When  speaking 
of  private  international  law  and  marriage  I  alluded  to  some  of  the 
reforms  in  the  law  of  persons.  Taking  up  this  subject  now  directly, 
let  me  first  call  attention  to  the  high  respect  that  has  been  paid  to 
the  liberty  of  the  individual  by  allowing  full  liberty  of  speech, 
limiting  it  only  in  special  cases  or  by  reason  of  a  higher  right  or  for 
serious  considerations  of  public  policy. 

The  law  of  persons  was  built  upon  the  principle  of  equality,  and 
of  exclusion  of  privilege.  Adopting  a  lofty  conception  of  man's 
destiny,  the  inviolability  of  his  rights  was  established  and  the  last 
vestige  of  civil  death  obliterated.  In  many  instances  those  moral 
ideals  were  illumined  by  a  real  splendor,  too  often  conspicuously 
absent  from  the  French  Code,  —  ideals  which  (in  the  fine  words  of 
Sclopis)  are  like  an  aroma  that  keeps  sweet  our  civil  institutions. 
Yet  in  this  very  regard  I  am  sorry  to  have  to  state  that,  while  cur- 
tailed and  altered  so  as  almost  to  be  abolished  in  civil  matters, 
personal  arrest  was  retained  in  the  new  Italian  Code. 

Citizenship  and  domicile  were  made  determinable  by  the  free 
will  of  the  party,  and  the  citizen  was  allowed  to  renounce  his 
nationality.  A  free  nation,  it  was  said,  has  need  of  free  men,  not 
serfs. 

The  home  was  placed  under  the  authority  of  the  husband  and 

problem  has  yet  to  be  given  a  practical  trend  in  the  light  of  actual  law,  or 
to  be  taken  out  of  the  realm  of  pure  discussion  into  that  of  life.  An  ex- 
haustive statistical  investigation  must  first  be  made  in  Italy  to  determine 
whether  the  system  of  divorce  "a  mensa  et  thoro"  accomplishes  itsend 
and  meets  the  needs  of  the  population;  or  whether  the  public  does  not 
voice  a  demand  for  divorce  "a  vinculis  matrimonii."  The  criminal 
statistics  of  cases  of  adultery  could  show  by  their  number  and  results  to 
what  extent  a  provision  of  the  Criminal  Code  protects  the  inviolability  of 
marriage. 

317 


§  4]  PART   II      NATIONAL   CODIFICATION  [Chap.    VIII 

father,  without,  however,  submerging  individual  personality  in  the 
unity  of  the  head  of  the  family  group.  In  this  way  paternal 
authority  was  made  what  nature  designed  it  and  modern  civiliza- 
tion demands  that  it  be,  —  not  a  right  created  for  the  benefit  of  the 
father,  nor  an  authority  over  the  persons  of  his  children,  but  a 
moral  principle  exercised  for  the  welfare  of  the  offspring  and  of  the 
entire  family.  The  law  of  guardianship  was  ameliorated  by  enlarg- 
ing the  Court's  power  to  intervene,  by  providing  for  greater  pub- 
licity, by  giving  the  family  council  a  continuous  existence,  and  by 
rendering  the  guardian's  administration  simpler,  speedier,  and 
more  economical. 

From  these  general  observations  it  seems  opportune  to  turn  to 
the  consideration  of  two  special  and  highly  important  problems : 
the  legal  status  of  women  and  of  illegitimate  children.  These  are 
inquiries  of  great  moment,  particularly  the  first;  for  to  form  a 
correct  estimate  of  the  moral  standard  of  a  nation,  it  is  enough  to 
determine  its  conception  of  woman  and  the  position  assigned  to 
her  by  law. 

The  problem  of  woman's  position  is  a  favorite  theme  for  the 
critical  and  liberal  spirit  of  our  century.  It  has  been  studied  from 
every  point  of  view,  beginning  with  the  physiological ;  the  various 
branches  of  intellectual  activity  have  all  contributed  their  share, 
from  the  drama  of  Alexandre  Dumas  to  the  philosophical  works  of 
John  Stuart  Mill ;  the  history,  customs,  and  laws  of  the  various 
nations  have  been  scrutinized  with  patience  and  erudition.  All  this 
labor  has  created  an  opinion  favoring  a  veritable  social  revolution, 
a  complete  reform  of  the  moral,  legal,  and  political  status  of  woman. 
Nevertheless,  Gabba,  considered  a  keen  observer,  recently  said 
that  the  unfounded  opinions  and  exaggerated  hopes  that  had  been 
raised  upon  the  reform  of  the  law  of  woman's  rights  were  among  the 
most  fallacious  and  dangerous  social  doctrines  of  the  age.1 

I  feel  that  the  vital  element  of  the  whole  problem  has  been  over- 
looked, —  that  of  the  natural  mission  of  woman.  Ethics  and  law 
have  often  been  shockingly  confused  ;  State  and  Legislature  have 
been  called  upon  to  accomplish  what  only  education,  custom,  and 
public  opinion  can  bring  about.  For  myself  I  reject  emancipa- 
tion. As  Ferrari  says,  it  would  mean  the  emancipation  of  woman 
from  her  nature,  her  mission,  her  modesty,  and  her  dignity.  To 
the  historical  (indeed  the  prehistorical)  dust-heap,  I  would  rele- 
gate that  so-called  system  of  gynecocracy  by  which,  during  the 

'"Inlorno  ad  alcuni  pia  general]  problemi  della  Seienza  sociale" 
(Turin,  1876),  p.  158. 

318 


Chap.    VIII]  ITALIAN   CODES  [§  4 

primitive  communism  of  human  society  (according  to  the  recent 
researches  of  Bachofen,  Lubbock,  McLennan,  Giraud  Teulon,  and 
others),  the  woman  and  mother  appear  to  have  regulated  family 
rights  with  sovereign  power.  I  reject,  too,  those  more  or  less 
socialistic  theories  of  the  absolute  independence  of  woman.  These 
theories,  which  aim  to  re-establish  the  domestic  partnership  upon 
the  basis  of  maternity  (because  always  ascertainable)  have  been 
sympathetically  and  eloquently  summarized  by  that  apostle  of 
woman's  rights,  E.  de  Girardin,  in  his  two  famous  aphorisms  :  "  La 
femrne  libre  "  and  "  La  liberte  legale  dans  le  mariage."  Putting 
aside,  then,  all  doctrinal  prejudices,  we  can  examine  this  branch 
of  Italian  law  with  a  more  independent  mind. 

In  general,  it  may  be  said  that  the  position  of  woman  has  been 
greatly  improved.  The  traditional  idea  of  guardianship  of  the 
sex  has  been  abandoned ;  equality  in  the  rights  of  succession  has 
been  established  ;  the  last  traces  of  those  unjust  preferences  given 
to  agnate  relatives  have  disappeared ;  the  mother  and  father 
enjoy  "  paternal  authority  "  together,  although  during  marriage 
its  exercise  has  been  reserved  to  the  father.  The  dignity  of  the 
wife's  position  has  been  raised ;  the  high  moral  conception  that 
she  should  be  man's  companion  rather  than  his  chattel  is  evident 
in  many  provisions,  especially  in  the  establishment  of  the  rights  and 
obligations  between  husband  and  wife  upon  a  standard  of  reciproc- 
ity. Ascendants  in  the  female  line  and  sisters  of  the  whole  blood 
have  been  admitted  to  guardianship ;  the  woman  may  act  as  surety 
and  the  law  recognizes  her  act  as  valid  ;  if  unmarried  or  a  widow, 
her  civil  capacity  over  property  has  been  made  in  all  respects 
equal  to  that  of  man. 

But  what  of  the  married  woman?  This  branch  of  the  law  is  a 
subject  of  severe  criticism.  The  legislator  has  been  accused  of 
lacking  the  courage  to  put  both  sexes  on  a  complete  equality  as 
logic  requires.  If  we  admit  that  woman  has  within  herself  the 
capacity  to  administer  and  dispose  of  her  separate  estate,  and  if 
the  notion  of  pagan  antiquity  regarding  the  inexperience  and 
frailty  of  the  sex  is  discarded,  it  follows  that  marriage  of  itself 
cannot  deprive  the  married  parties  of  the  right  of  disposing  of  their 
property.  It  does  not  in  fact  deprive  the  husband  of  his  rights, 
and  therefore  there  is  no  reason  in  law  why  the  wife  should  be 
divested  of  hers.  These  were  the  arguments  put  forward  by 
Pisanelli  when  supporting  his  draft  of  the  Code  (as  also  by  Miglietti 
when  supporting  his),  to  do  away  with  the  necessity  of  authoriza- 
tion of  the  wife's  acts  by  the  husband.     And  Pisanelli  added  the 

319 


§  4]  PART    II      NATIONAL    CODIFICATION  [Chap.    VIII 

significant  fact  that  in  Italy,  the  direct  heir  to  the  Justinian  reforms, 
authorization  was  not  deemed  necessary  until  introduced  through 
French  law.  I  am  opposed  on  principle  to  this  "  capitis  diminutio  " 
of  woman,  and  would  have  the  law  reach  a  full  recognition  of  her 
individuality.  Still,  in  view  of  special  and  transitory  conditions 
in  Italy,  it  does  not  seem  to  me  a  great  mistake  to  have  maintained 
it,  nor  can  I  make  up  my  mind  to  swell  the  number  of  those  jurists 
who  would  abolish  it  at  once. 

But  even  in  this  matter  the  Italian  Code  undoubtedly  marks  a 
notable  progress.  The  number  of  the  wife's  acts  requiring  the 
husband's  authorization  has  been  so  limited  that  they  may  be  con- 
sidered the  exception  rather  than  the  rule.  She  may  receive  a 
general  authorization ;  she  may  act  alone  without  her  husband's 
joinder  when  he  lacks  capacity  to  act  himself  or  is  disqualified 
from  authorizing  her.  So  the  very  spirit  of  the  rule  requiring 
marital  authorization  has  been  transformed,  for,  as  Gide  observes,1 
while  a  certain  eclecticism  is  apparent  (as  a  result  of  the  necessity 
of  reconciling  the  two  systems),  and  while  prejudices  favoring  the 
husband's  sex  and  control  are  still  just  discernible,  nevertheless,  the 
chief  aim  of  the  legislator  —  indeed  the  only  rational  one  — ■  was 
to  conserve  the  family  estate.  But  there  still  remain  so  many 
contradictions,  inconsistencies,  doubts,  and  omissions  in  regard  to 
the  rule  that  I  do  not  hesitate  to  describe  the  regulation  of  marital 
control  by  the  Italian  Code  as  both  confused  and  inadequate. 
Either  the  necessity  for  marital  authorization  should  have  been 
extended  to  all  acts  beyond  those  of  simple  business  management, 
or  at  least  the  acts  requiring  authorization  should  have  been 
enumerated  with  greater  care.  In  that  way  certain  acts,  far 
more  dangerous  than  those  enumerated,  would  not  have  been 
omitted. 

It  is  certainly  not  to  be  commended  that  women  as  a  general 
rule  were  excluded  from  acting  as  witnesses  to  documents  of  a 
public  and  formal  nature.  But  logic,  I  am  glad  to  say,  has  re- 
cently led  to  the  abolition  of  the  rule. 

The  saying  of  Papinian  regarding  the  Roman  woman,  "  in 
multis  juris  nostri  articulis  deterior  est  conditio  foeminarum  quam 
masculorum",  has  been  declared  to  sum  up  with  equal  truth  the 
position  of  women  under  the  Italian  Code.  Were  the  words  true, 
still  it  must  not  be  forgotten  that  giant  strides  have  been  made. 
But  for  further  progress  it  is  not  enough  to  reform  the  letter  of  the 

1  Gide  was  well  qualified  to  speak  on  the  subject.  Cf.  "De  la  legisla- 
tion civile  dans  le  nouveau  royaume  d'ltalie"  (Paris,  1866),  p.  16. 

320 


Chap.  VIII]  ITALIAN  CODES  [§  4 

law.  The  ground  must  be  prepared  by  altering  customs  and  public 
opinion  which  is  always  shackled  by  tradition  and  prejudice,  and 
by  more  seriously  undertaking  the  practical  education  of  woman. 
The  task  is  a  great  one  ;  it  will  not  do  to  patch  the  matter ;  it  must 
be  entirely  re-made,  and  promptly.1 

If  the  legal  position  of  woman  is  a  problem,  that  of  the  illegiti- 
mate child  is  something  more  :  there  is  something  of  the  enigma  in 
it  because  science  and  law  here  come  face  to  face  with  nature. 
Jurisprudence  has  her  mysteries  like  physiology.  The  latter  may 
lament  her  mysteries  as  imperfections,  but  the  former  runs  the 
risk  of  being  unjust.  Justice  demands  that  the  natural  child  be 
recognized  as  the  subject  of  a  legal  relation  binding  him  to  another 
person  by  the  fact  of  birth.  Law  does  not  consequently,  in  the 
abstract,  contest  his  right  to  establish  his  paternity  by  legal  inquiry. 
When,  however,  it  comes  to  giving  a  concrete  expression  to  this 
right,  to  protecting  and  supporting  it,  justice  admits  its  inability 
to  act  in  the  face  of  the  impossibility  of  proof,  or  unless  proof  is 
furnished  through  recognition  by  the  father  or  through  a  presump- 
tion arising  from  special  circumstances.  That  this  should  be  the 
case  seems  clear  and  just  to  some  people ;  I  shall  not  discuss  it. 
But  it  is  certain  that  logic  ends  and  injustice  begins  when  circum- 
stantial evidence  or  recognition  by  the  father  are  not  given  their 
proper  value,  and  when  the  law  (which  of  itself  can  know  nothing), 
assuming  to  be  better  informed  than  the  father  who  has  furnished 
proof,  has  the  hardihood  to  say  to  him  :  "  You  are  mistaken." 

This  is  what  the  Italian  Code  has  done.  It  prohibited  all 
inquiry  into  paternity.  More  than  this,  it  took  an  obvious  step 
backwards  when  it  refused  to  follow  the  liberal  example  of  King 
Albert's  Law  and  denied  the  paternal  relation  even  where  the 
father  presented  a  written  acknowledgment  or  where  the  relation- 
ship was  shown  by  the  care  which,  as  father,  he  bestowed  over  a 
period  of  time  upon  the  child.  On  the  other  hand,  an  action  for 
support  was  granted  to  children  whose  paternity  the  law  would  not 
recognize  in  the  former  instance  (i.e.  where  recognized  in  writing). 
Here  was  an  inconsistency  which  the  fallacious  arguments  growing 
out  of  the  distinction  between  the  two  cases  certainly  have  not 
helped  to  clear  up.  Instead  of  the  wisdom  of  the  Roman  law  and 
the  equity  of  the  Canon  law,  which  governed  with  beneficial 
results  in  some  parts  of  Italy,  and  in  place  of  the  potent  example 
of  the  law  of  many  other  nations,  the  influence  of  the  French  Code 
and  its  commentators  has  prevailed,  though  their  arguments  have 
1  In  this  I  agree  with  Pertusati,  "Morale  sociale." 
321 


§  4]  PART   II      NATIONAL   CODIFICATION  [Chap.    VIII 

been  successfully  rebutted  by  the  majority  of  writers  on  legal  and 
political  philosophy.1 

But  the  justice  of  the  reasons  put  forth  by  these  authors  and 
the  force  of  public  opinion  make  it  likely  that  the  time  to  abolish 
an  unjust,  immoral,  and  unwise  prohibition  is  at  hand.  The  law 
is  unjust,  because  the  exercise  of  a  right  (and  pray  what  right  is 
more  fundamental  ?)  cannot  be  denied  or  limited  by  reason  of  the 
difficulty  of  its  proof,  and  because  the  mother  and  child  are  wronged 
so  long  as  the  law  frees  the  father  from  the  natural  obligation  of  pro- 
viding for  them  and  leaves  this  burden  to  weigh  inequitably  upon 
the  mother  alone.  It  is  immoral  and  unwise  because  it  counte- 
nances irresponsibility  regarding  so  serious  an  act  as  that  of  giving 
existence  to  a  human  being,  and  so  facilitates  cowardly  desertions 
and  sets  a  premium  upon  dishonesty.  Perils,  scandals,  and  causes 
of  all  sorts  are  feared.  But  may  they  not  arise  now?  May  they 
not  weigh  even  more  heavily  upon  woman  under  the  present  sys- 
tem ?  And,  furthermore,  can  it  be  that  the  experience  of  the  old 
law  and  of  so  many  civilized  nations  justifies  those  fears?  Cer- 
tainly not.  The  policy  of  the  Italian  law  is  not  a  sound  one.  Pub- 
lic morals,  the  tranquillity  of  the  family,  the  good  repute  of  citizens 
—  these  are  not  guarded  by  casting  a  cloak  of  silence  over  a  shame- 
fully inhuman  act,  or  by  sacrificing  the  sacred  rights  of  human- indi- 
viduality to  the  phantom  of  so-called  social  considerations.  Rather 
are  they  fortified  and  supported  by  being  given  into  the  protection 
of  the  law,  and  by  maintaining  in  every  case  and  to  the  very  limit 
the  principle  of  personal  responsibility. 

In  spite  of  these  severe  criticisms  I  am  glad  to  acknowledge  and 
approve  the  numerous  and  important  reforms  that  a  spirit  of 
liberalism  introduced  to  ameliorate  the  position  of  the  illegitimate 
child,  especially  the  changes  in  the  law  of  inheritance.  But  even  in 
this  regard  greater  and  better  reforms  can  and  should  be  accom- 
plished.2 

1  Investigations  as  to  paternity  are  permitted  in  England,  Austria, 
Baden,  Bavaria,  Prussia,  Denmark,  Russia,  Roumania,  Spain,  Portugal, 
Greece,  the  Ionian  Islands,  many  of  the  Swiss  Cantons,  and  the  United 
States  including  Louisiana.  How  can  it  be  said  then  (cf.  Vigliani's 
"Report"  upon  the  draft  of  the  Code)  that  the  denial  of  the  right  was  a 
principle  of  common  law  to  civilized  nations?  For  the  opinion  of  jurists, 
cf.  Roder,  "  Kritische  Beitrage  zur  Vergleichung  der  deutschen  und  aus- 
liindischen  Gcsetzgebung  uner  die  aussereheliche  Geschlechtsgemein- 
schaft"  ;  E.  Acollas,  "Le  droit  de  l'enfant  ne  hors  mariage"  (Paris,  1872). 
Among  Italian  authors  may  be  mentioned  Rosmini,  Carrara,  Gabba, 
Albini,  Mattirolo,  Filomusi-Guelfi,  Ronga,  Saredo,  Precerutti,  the  last  of 
whom  with  pitiless  logic  has  presented  a  powerful  summary  of  the  ques- 
tion in  the  "Legge",  5th  year,  no.  68. 

2  Cf.  Scandiani,  "Delle  successioni  legittime",  found  in  "Archivio 
Giuridico",  Vol.  V.,  pp.  427  et  seq. 

322 


Chap.  VIII]  ITALIAN  CODES  [§  5 

§  5.  Property  under  the  Code.  —  Referring  now  to  that  branch 
of  the  law  relating  to  property  or  economic  law,  I  realize  more  than 
ever  the  limitations  forced  upon  me  by  the  bounds  of  a  mere  address, 
and  I  fear  lest  my  observations,  confined  as  they  must  be  to  a  few 
very  fundamental  points,  will  be  still  more  imperfect  and  incom- 
plete than  the  discussion  so  far. 

The  French  Code  has  been  a  target  for  the  fierce  assaults  of 
economists.  Among  these  Rossi *  inquired  whether  it  was  still 
in  harmony  with  the  altered  economic  conditions  of  modern  society. 
Only  too  accurate  was  his  summary  of  the  discouraging  conclusions 
drawn  from  economic  considerations,  when  he  declared  that  society 
and  civil  law  did  not  seem  to  be  made  for  one  another.2  Were  the 
great  jurist  alive  to-day,  he  would  observe  with  pride  that  the 
legislation  of  his  country  had  (if  not  wholly,  at  least  to  a  degree) 
realized  his  hopes,  and  that  even  in  foreign  opinion  the  Italian 
Code  had  attained  in  this  respect  an  undeniable  superiority  not 
only  over  the  French  but  over  all  other  European  codes.  Wherein 
lies  this  superiority  ? 

With  few  exceptions,  the  right  of  property  and  its  different  sorts 
have  been  regulated  in  a  reasonable  spirit  of  conciliation  between 
the  right,  of  the  individual  and  the  justifiable  interests  of  the 
public.  The  rights  of  the  inventor  and  author  have  been  regulated 
in  substantial  accord  with  the  true  principles  of  legal  and  economic 
philosophy.  The  general  principles  of  ownership  in  common  and 
of  possession  have  been  logically  formulated ;  the  difficult  subject 
of  possessory  actions  has  been  excellently  systematized.  Regard- 
ing easements  and  water  rights,  the  reforms  of  the  Code  of  King 
Albert  have  been  retained  and  even  brought  into  line  with  the  most 
recent  progress  in  agriculture  and  the  physical  and  mathematical 
sciences.  The  Italian  legislator  deserves  the  gratitude  of  the 
agricultural  industries.  The  provisions  which  he  has  drafted  are  a 
worthy  monument  to  the  memory  of  that  great  author  of  "  Prin- 

1  Cf.  "Observations  sur  le  droit  civil  frangais  considere  dans  ses  rap- 
ports avec  1'etat  economique  de  la  societe",  in  his  "Melanges",  Vol.  II. 

2  Even  more  radical  than  Rossi  is  the  criticism  of  Batbie  in  his  '  'Revision 
du  Code  Napoleon"  (Paris,  1866).  Examining  French  law  solely  from 
an  economic  point  of  view  and  aside  from  any  ethical  or  legal  principles, 
he  appealed  for  a  reform,  which  certainly  from  these  last  two  points  of 
view  could  not  be  too  strongly  recommended.  It  is  impossible  to  criticize 
civil  legislation  by  applying  the  measure  of  economic  principles  to  it 
unless  the  essential  relations  between  economics  and  law  are  first  deter- 
mined. If  conversely  we  consider  a  legal  problem  according  to  the  canons 
of  pure  science  as  determined  by  rigid  economic  laws,  we  run  the  risk  of 
sacrificing  a  principle  of  justice  to  a  utilitarian  end.  With  this  criterion 
in  mind  I  am  undertaking  a  special  examination  of  the  Italian  Civil  Code 
from  the  economic  point  of  view. 

323 


§  5]  PART  II      NATIONAL   CODIFICATION  [Chap.    VIII 

ciples  of  Justice  Applied  to  Water  Rights",  Gian  Domenico 
Romagnosi.1 

Testacy  and  intestacy  are  undoubtedly  one  of  the  most  remark- 
able parts  of  the  Code.  The  latest  conclusions  of  the  philosophy  of 
civil  law  have  found  adoption  and  the  requirements  of  modern 
civilization  have  been  met.  Surely  Italians  are  justified  in  their 
pride  when  one  of  the  greatest  French  jurists,  Theophile  Hue,2 
confesses  that  some  day  his  country  need  but  incorporate  the  rules 
of  Italian  law  in  many  matters  to  effect  a  needed  reform. 

Testate  and  intestate  succession  have  been  placed  upon  the 
same  level  before  the  law,  without  any  suggestion  of  preference 
being  accorded  to  either.  The  holographic  will  has  been  sanc- 
tioned in  all  its  simplicity.  The  right  to  disinherit  has  been  denied. 
The  right  to  leave  by  will  has  been  reconciled  with  the  claims  of 
the  family,  by  reducing  the  prescribed  portions  claimable  by  the 
descendants  to  a  fixed  one-half  of  the  possessions  of  the  testator. 
In  this  way  the  equally  dangerous  shoals  of  too  small  or  too  large 
an  inalienable  portion  have  been  avoided.  Upon  the  former  of 
these  the  Franco-Roman  system  struck  when  it  adopted- the  rule 
that  the  disposable  portion  should  be  determined  by  the  number 
of  heirs.  The  right  to  inherit,  or  the  right  over  the  indisposable 
portion,  has  been  extended  to  such  persons  as  the  deceased  may 
be  presumed  to  have  intended  to  help,  or  towards  whom  he  owed 
binding  moral  and  legal  duties.  In  this  way  the  interests  of  the 
natural  child  have  been  protected. 

By  a  courageous  reform  of  a  long-standing  injustice,  the  married 
couple  have  been  given  that  guaranty  of  mutual  assistance  which, 
at  the  time  of  their  marriage,  they  certainly  intended  should  con- 
tinue after  the  death  of  either  one  of  them.  The  principle  of 
representation  has  been  introduced  into  testamentary  succession 
(an  anomalous  case),  upon  the  grounds  of  the  presumed  intent  of 
the  testator  and  to  establish  equality  amongst  the  heirs.  Where 
ascendants  are  called  to  inherit,  the  nearest  is  preferred,  because 
of  the  presumption  of  affection,  which,  according  to  the  old  Aris- 
totelian conception,  decreases  in  ascending.  All  distinction  has 
been  abolished  between  normal  and  privileged  inheritance  (as 
where  an  ascendant  is  called  ahead  of  the  next  of  kin  to  inherit  the 
gift  which  he  made  to  the  deceased),  as  also  all  differences  of 
succession  according  to  the  source  of  the  property  (purchased  or 
inherited,  maternal  or  paternal  line).     Every  preference  favoring 

1  "Ragione  civile  delle  acque." 

2  "  Le  code  civil  italien  et  le  Code  Napoleon"  (Paris,  1868). 

324 


Chap.    VIII]  ITALIAN   CODES  [§  6 

the  first-born  or  the  male  sex  has  been  abandoned.  The  trust- 
entail  has  been  abolished,  such  as  a  special  entail  male  for  the  bene- 
fit of  the  eldest  son  or  any  other  trust-entail  for  remainders,  even 
where  a  father  names  a  beneficiary  who  is  to  take  if  his  heir  dies  a 
minor  and  incapable  of  naming  his  own  heir.  By  these  provisions 
all  obstacles  to  the  free  circulation  of  property  have  been  re- 
moved ;  the  way  has  been  opened  to  a  distribution  of  ownership, 
which  is  not  only  of  great  economic  but  also  of  great  moral  and 
political  value,  as  it  tends  to  increase  the  number  of  property 
holders  and  thereby  to  weaken  the  ranks  of  the  enemies  of 
property  and  strengthen  the  foundations  of  our  threatened  social 
edifice. 

One  other  reform  remains  desirable,  that  of  substituting  for 
escheat  to  the  State  escheat  to  the  municipality  or  some  charitable 
work.  The  presumed  intent  of  the  deceased  has  been  made  the 
governing  principle  of  intestate  law.  It  would  have  been  more 
logical  and  equitable,  therefore,  to  call  those  institutions  to  take 
which  the  deceased  may  have  been  presumed  to  have  desired  to 
benefit,  and  which  may  have  been  presumed  to  have  entertained 
some  hope  with  respect  to  his  fortune.  In  this  I  agree  with  Buniva,1 
Curcio,2  Scandiani,3  and  also  Rodiere,  who  has  pointed  out  the 
grave  objection  that  escheat  to  the  State  aids  the  socialist's  Utopia, 
because  it  presupposes  a  sort  of  primitive  title  in  the  State  from 
which  ownership  is  derived  and  to  which  it  reverts.4 

§  6.  Contract  under  the  Code.  —  Passing  now  to  contract  law,  it 
may  be  said  without  reservation  that  the  broadest  possible  individ- 
ual liberty  has  been  made  the  general  rule.  It  is  indeed  encourag- 
ing to  hear  the  legislator  repeatedly  insist  upon  the  ideal  of  main- 
taining inviolate  the  right  of  the  individual. 

Whoever  has  the  capacity  to  dispose  freely  of  his  property  (says 
the  "  Report  "  on  the  draft  of  the  Code  by  the  Government  and  the 
Senate)  must  be  permitted  to  alienate  it  as  he  desires  :  a  guardian- 
ship imposed  by  law  on  those  who  have  reached  majority  is  not  a 
principle  that  entered  into  the  making  of  the  new  Code.  Out  of 
respect  for  the  liberty  of  contract,  the  intent  of  the  parties  was  made 
the  law  governing  their  agreement.  The  heirs  of  a  deceased  person 
may  no  longer  insist  upon  the  resale  to  them  of  the  share  in  the 
estate  which  a  third  party  has  had  assigned  to  him  from  an  heir 

1  "Suceessioni  legittime  e  testamentarie",  p.  95. 
J  "Lettere  sul  Codice  civile"  (1866),  p.  20. 

3  "Suceessioni  legittime",  in  "Archivio  Giuridico",  Vol.  VI,  p.  431. 

4  "  Changements  a  introduire  dans  l'ordre  des  successions  ",  in  "Recueil 
de  l'Academie  de  legislation"  (1856),  Vol.  V,  pp.  143  et  seq. 

325 


§  6]  PART  II      NATIONAL   CODIFICATION  [Chap.   VIII 

of  the  deceased.1  Gifts  have  been  freed  from  useless  solemnities  of 
form  and  from  the  intervention  and  approval  of  the  court.  The 
right  to  fix  the  rate  of  interest  by  agreement,  even  of  providing  for 
compound  interest  on  loans,  was  established :  this  resulted  in  the 
disappearance  of  the  old  Church  prejudice  which  held  money  to  be 
unproductive ;  and  the  Code  is  thus  brought  into  line  with  the 
Sardinian  law  of  1857,  which  made  Italy,  through  the  great  mind  of 
Camillo  Cavour,  the  standard-bearer  of  European  progress.  The 
irrevocable  promise,  made  on  the  occasion  of  a  marriage,  to  be- 
queath property  to  a  specific  person,  was  excluded,  as  contrary  to 
the  integrity  of  legal  principles  no  less  than  to  economic  require- 
ments ;  since  it  rendered  titles  uncertain  and  precarious,  struck  at 
the  heart  of  land  credit,  and  upset  the  entire  mortgage  system. 

To  remove  uncertainty  in  rights  in  general  and  to  facilitate  their 
transmission,  as  well  as  to  keep  abreast  in  the  mad  race  of  modern 
economic  life,  the  period  of  limitation  of  actions  to  rescind  and 
annul  contracts  was  reduced.  The  old  assignment  for  the  benefit 
of  creditors,  which  could  be  imposed  upon  them,  was  eliminated ; 
indeed  it  had  no  application  after  personal  arrest  in  civil  matters 
had  been  restricted.  Reforms  highly  favorable  to  credit,  which 
increases  in  proportion  to  the  facility  and  promptness  in  giving 
satisfaction  to  creditors,  were  those  re-establishing  the  Roman 
maxim  that  the  debtor  is  put  in  default  by  the  mere  expiration  of  the 
time  allowed  for  performance,  and  those  taking  from  the  court  the 
right  to  extend  the  period  of  execution  of  a  contract  or  to  reduce 
liquidated  damages. 

In  the  contract  of  marriage,  the  law  adopted  a  neutral  position, 
granting  the  parties  liberty  to  determine  for  themselves  the  form 
of  "  charter  "  they  would  adopt  for  their  home,  by  choosing  be- 
tween the  dotal  system  (that  is,  the  separation  of  the  estates)  and 
the  system  of  co-ownership.  If  so  provided  in  the  marriage  settle- 
ment, the  husband  may  alienate  or  mortgage  the  property  con- 
stituting his  wife's  dowry.  The  necessities  of  credit  demanded  this 
provision  ;  it  was  also  advisable  in  order  to  facilitate  the  circulation 
of  property,  and  further  for  the  legal  reason  that  a  prohibition 
against  it  would  be  illogical  and  useless  so  long  as  the  dotal  system 
were  not  made  obligatory.     And  indeed  to  do  so  would  be  absurd. 

Out  of  respect  for  the  opinion  of  economists  emphyteusis  2  was 
retained.     But  all  the  old  feudal  elements  were  eliminated  by 

1  "II  riscato  o  retratto." 

2  [A  lease  for  indefinite  period  or  in  perpetuity,  corresponding  to  the 
customary  copyhold  tenures  of  English  common  law.  —  Ed.] 

326 


Chap.  VIII]  ITALIAN  CODES  [§  6 

giving  the  tenant  power  to  redeem  the  rent  at  will.  In  this  form 
the  institution  will  render  important  service  to  uncultivated  lands 
and  lands  held  by  municipalities  and  other  corporate  bodies.  A 
wise  regulation  of  the  metayer  system  of  working  the  land  (prod- 
uce-sharing as  rent)  was  provided,  which  should  benefit  a  country 
above  all  agricultural.  Many  economists  and  agriculturists  were 
of  the  opinion  of  Adam  Smith  and  Young,  who  ignored  the  great 
moral  and  political  advantages  of  this  institution  and  emphasized 
the  reduced  productivity  which  went  along  with  it.  Their  dis- 
approval was  too  sweeping  and  absolute.  I  believe  that  in  Italy 
this  institution  may  protect  us  from  the  storm  that  is  threatening 
too  abrupt  a  solution  of  the  so-called  agrarian  question.1 

To  strengthen  credit,  to  give  safety  to  property  dealings,  and  to 
develop  land  credit,  which  is  so  important  in  agriculture,  a  system 
of  broad  and  complete  publicity  was  introduced  in  the  transfer 
of  property  rights  by  a  recording  system,  and  by  an  excellent 
mortgage  law  based  upon  publicity  of  transfer  and  specifica- 
tion of  the  property  (i.e.  in  contrast  to  a  general  hypothec 
of  all  property). 

I  have  indicated  the  points  that  are  deserving  of  praise ;  I  can- 
not now  pass  in  silence  over  the  defects  and  omissions  to  be  found 
in  this  branch  of  the  law.  Liberty  of  contract  was  not  always 
respected.  Sometimes  recourse  was  had  to  that  legal  protec- 
tionism for  which  we  aimed  to  substitute  self-reliance. 

By  maintaining  the  right  of  redemption  of  a  chose  in  action  by 
the  debtor's  paying  merely  the  consideration  of  the  assignment,  an 
obstacle,  both  unjust  and  productive  of  moral  and  economic  injury, 
was  perpetuated  in  transfers  of  such  rights.  Not  the  greatest 
injury  done  is  that  which  the  assignor  eventually  suffers  when  by 
reason  of  the  danger  of  the  redemption  of  the  debt  he  finds  his 
market  greatly  restricted.  The  rate  of  interest  was  allowed  to  be 
fixed  freely  by  agreement ;  but  by  a  flagrant  inconsistency  the 
debtor  was  permitted  to  nullify  a  contract  which  he  had  deliber- 
ately entered  into  by  reimbursing  at  the  end  of  five  years,  contrary 
to  the  terms  of  the  loan,  the  capital  of  a  debt  bearing  interest  in 
excess  of  the  legal  rate.     Another  contradiction  of  the  principle 

1  I  am  glad  to  be  able  to  cite  as  favoring  the  metayer  system :  John 
Stuart  Mill,  "  Principles  of  Political  Economy  ",  II,  8,  and  Roscher,  "  Econo- 
mia  dell'  agricoltnra  e  delle  materie  prime",  §§  59,  60.  The  system  has 
received  distinguished  support  in  Italy :  Rabbeno:  "II  eontrato  di  mezza- 
dria  nei  suoi  rapporti  colle  odierne  questioni  cconomico-sociali "  (Reggio, 
1874),  and  the  practical  criticism  of  R.  Lambruschini,  "Intorno  al  valore 
technico  e  morale  della  mezzadria." 

327 


§  6]  PART   II      NATIONAL   CODIFICATION  [Chap.    VIII 

of  liberty  was  the  retention  of  the  rule  that  a  sale  of  real  property 
might  be  rescinded  on  the  grounds  of  the  inequity  of  the  price  (the 
inequity  being  fixed  by  law).  Precerutti  rightly  condemned  such 
a  rule  as  autocratic  and  arbitrary,  a  result  of  false  paternalism 
savoring  of  socialism,  and  productive  of  the  same  result  as  a  forced 
loan  between  the  parties.1  There  is  certainly  no  legal  reason  for  a 
rule  which  permits  one  class  of  contracts  over  one  kind  of  property 
freely  entered  into  without  fraud,  to  be  rescinded  by  one  only  of  the 
contracting  parties.  From  the  economic  point  of  view,  what  does 
the  law  of  demand  and  supply  consider  an  inequitable,  what  a  fair 
price?  The  nature  and  weight  of  the  necessity  which  is  held  to 
burden  the  vendor  increases  the  intensity  of  his  need  of  money. 
This  is  an  element  which  naturally  decreases  the  price  of  the  land  ; 
but  it  has  not  been  considered  by  the  law.  The  same  criticism 
may  be  made  of  the  prohibition  of  the  clause  of  forfeiture  on  de- 
fault 2  in  a  pledge,  a  clause  which  in  effect  turns  the  pledge  into  a 
conditional  sale. 

All  these  encroachments  of  the  law  upon  the  liberty  of  contract 
are  ascribable  to  the  influence  of  Roman  Law,  misunderstood  in  its 
historical  origin  and  consequently  misapplied ;  for  we  now  know 
that  similar  Constitutions  of  the  Emperors  were  not  justified  on 
judicial  grounds  but  by  the  great  economic  and  social  unrest  of  that 
time.3 

Yet  more  grave  are  the  law's  omissions.  We  have  been  and  still 
are  witnesses  of  an  economic  revolution,  and  this  has  brought  with 
it  a  profound  social  revolution.  I  refer  to  the  ever-increasing 
importance  of  personal  property  as  wealth.  Capital  and  labor 
are  gradually  acquiring  a  larger  productive  value  in  comparison 
with  the  other  coefficient  of  production,  nature.  The  changes  that 
have  taken  place  in  the  industrial  world  by  perfecting  the  instru- 
ments of  intercourse  in  their  double  aspect  of  transportation  and 
exchange,  through  railroads  and  all  kind  of  negotiable  instruments, 
and  by  the  introduction  of  stock  companies  that  have  become  a 
field  of  investment  by  the  private  capitalist  and  the  bank,  have 
wrought  a  marvellous  transformation  in  the  manufacturing  and 
commercial  industries,  raising  them  slowly  from  their  low  estate  to 
an  economic  and  social  equality  with  landed  wealth.  The  aristo- 
cratic supremacy  of  the  landowner  has,  so  to  speak,  been  levelled 
by  the  ever-rising  importance  of  movable  wealth.     That  fantas- 

'  In  the  "Archivio  Giuridieo ",  Vol.  IV,  pp.  227  et  seq. 

2  [Pactum  coin  in issori u m.\ 

1  See  Padellclli,  "Storia  <l*'l  diritto  Romano",  chapter  lx. 

328 


Chap.  VIII]  ITALIAN  CODES  [§  7 

tic  genius  Heine  was  able  with  truth  to  say  in  his  "  Louis  Boerne  " 
that  Rothschild  was  one  of  the  greatest  revolutionists  who  have 
created  modern  democracy. 

But  this  rapid  and  important  development  of  movable  wealth 
was  entirely  neglected  in  the  Italian  Code,  as  in  the  French,  in  spite 
of  the  fact  that  the  Senatorial  Commission  pointed  out  that  it  was 
inevitable.  In  vain  one  looks  for  provisions  defining  the  legal 
character  of  railroads,  regulating  the  management  of  manufactur- 
ing establishments,  or  fixing  the  principles  that  should  guide  that 
most  powerful  factor  in  economic  progress,  the  industrial  com- 
pany, "  which  must  be  given  an  effective  form  and  legal  protec- 
tion." *  In  aleatory  contracts  an  unwillingness  was  manifest  to 
define  and  regulate  (so  far  as  they  fell  within  the  civil  law)  contracts 
of  future  performance,  especially  those  constituting  industrial 
shares  and  securities.  Such  provisions  would  have  prevented  the 
deplorable  confusion  and  errors  of  the  Courts'  decisions.  The  legal 
form  of  the  contract  of  insurance  was  not  settled,  and  this  has 
worked  great  harm;  for,  as  Rossi  himself  said,  the  silence  of  the 
law  must  also  be  held  responsible  for  the  fact  that  insurance 
is  still  beset  with  serious  obstacles,  and  that  the  public  remains 
indifferent  to  an  institution  capable  of  procuring  it  very  great 
advantages  both  material  and  moral,  especially  in  the  field  of  life 
insurance. 

§  7.  The  Code  as  a  National  Achievement.  —  In  spite  of  the 
defects  and  omissions  that  have  been  pointed  out,  and  of  numerous 
others  that  might  be  discovered  upon  closer  examination,  the 
Italian  Code  remains  to-dav  a  serious  and  admirable  monument 
to  the  legal  learning  and  vitality,  never  indeed  denied,  of  the 
descendants  of  Rome.  Wolgraff,  who  was  a  sworn  opponent  of 
codification,  has  said  that  nations  adopt  codes  only  when  decadent 
and  corrupt.  Some  examples  in  history  may  justify  so  daring  a 
statement ;  but  its  sweeping  generality  can  be  answered  by  brilliant 
instances  to  the  contrary.  Suffice,  indeed,  to  cite  the  example  of 
that  people  who  wrought  the  unity  of  their  law  when  they  had 
discovered  within  themselves  those  forces  needed  to  win  their 
independence  and  to  recommence  their  history  ;  here  surely  is  proof 
that  the  corrupting  influence  of  ages  of  despotism  was  powerless 
to  smother  the  sacred  genius  of  Italy. 

Whether  for  its  liberal  spirit  or  for  a  merit  which  we  might  call 
doctrinal  or  scientific,  the  Italian  Civil  Code  may  be  considered  to- 
day as  the  best  legislation  upon  private  law  in  Europe.     Such  an 
1  Senatorial  Report. 
329 


§  7]  PART   II      NATIONAL   CODIFICATION  [Chap.    VIII 

estimate  is  neither  exaggerated  nor  inspired  by  national  pride ;  for 
it  is  that  held  even  by  foreigners.  Among  these  is  Hue,  who,  after 
examining  the  Italian  Code  with  sympathetic  learning  in  his 
excellent  work  on  comparative  law  and  after  having  remarked 
upon  its  points  of  superiority  over  the  French  Code,  concluded  by 
declaring  it  a  labor  full  worthy  of  an  independent  nation.  What 
praise  could  be  greater? 

I  am  eager  to  mention  another  merit  also  which  I  esteem  indeed 
the  greatest  of  all  and  which  is  a  definite  reply  to  that  question 
which  I  put  in  the  early  part  of  this  address :  Is  the  Civil  Code  a 
true  contemporaneous  history  of  our  law  ?  Is  it  a  truly  original 
and  national  achievement?  I  do  not  hesitate  to  declare  it  to  be 
such. 

I  cannot  indeed  say  so  much  for  the  other  codified  parts  of 
Italian  Law.  In  those  branches  of  the  law,  native  traditions  have 
been  disregarded  or  neglected  and  servile  copies  of  foreign  institu- 
tions have  been  adopted  which  are  not  and  cannot  become  Italian. 
But  the  civil  law  was  born  under  more  favorable  auspices.  Reforms 
and  new  departures  were  introduced,  but  they  had  been  matured 
by  time  and  slowly  elaborated  in  the  legal  conscience  of  the  nation 
and  in  the  opinions  of  writers  and  the  Courts.  The  Code  marked 
no  violent  shock  or  superimposed  no  artificial  machinery.  The 
advance  was  along  the  road  of  progress ;  but  it  was  marked  by  a 
wise  caution  and  moderation,  so  difficult  yet  so  indicative  of 
strength.  Excellence  in  the  science  of  law-making  certainly  is  not 
gained  by  drafting  the  law  of  a  nation  upon  fixed  and  universal 
archetypes,  much  less  by  rigidly  crystallizing  it  as  it  is  found. 
Reason  must  not  be  allowed  to  divorce  history ;  there  must  be  no 
antagonism  between  ideal  and  reality,  no  discord  between  law 
and  custom.  Rather  should  history  be  led  towards  perfection: 
law  should  interpret  and  voice  the  popular  conscience,  guiding  it 
yet  reflecting  the  true  form,  trend,  and  needs,  the  intellectual, 
moral,  and  economic  conditions  of  national  life.  The  future  must 
be  provided  for,  and,  at  the  same  time,  all  that  is  live  and  substan- 
tial in  the  inheritance  of  the  past  must  be  preserved,  formed  to 
present  requirements  and  prepared  for  the  progress  of  the  future. 
A  code  must  be  both  a  history  and  a  system  ;  it  must  promote  those 
two  great  forces,  conservation  and  progress,  upon  whose  parallel 
development  hangs  the  welfare  of  organized  society  as  well  as  the 
harmony  of  the  entire  world.  These  principles  our  law-makers 
received  in  the  unbroken  tradition  of  the  Italian  school  from 
Pythagoras  to  Vico,  and  in  the  conspicuously  philosophical  tend- 

330 


Chap.   VIII]  ITALIAN  CODES  [§  7 

ency  so  characteristic  of  our  genius.1     They  were  not  unmindful 
of  them. 

Thus  were  avoided  the  dangers  and  disadvantages  of  codifica- 
tion. Perhaps  Savigny  was  right  when  he  said  that  a  nation  abides 
by  the  judgment  of  the  dead  when  it  adopts  a  code  which  is  insen- 
sible to  the  changes  that  are  taking  place  in  the  manner  of  life, 
and  which  claims  to  be  the  last  pronouncement  of  the  law,  con- 
centrating the  whole  legal  organism  of  national  life  into  a  few 
phrases.  Let  me  repeat  that  we  must  keep  in  mind  the  future  and 
the  progressive  life  of  the  law.  "  Time  builds  the  codes,  not  man." 2 
True ;  and  codification  has  not  choked  the  life  of  Italian  law  nor 
circumscribed  the  continuous  activity  of  the  national  spirit.  It 
has  indeed  rather  opened  the  doors  to  all  the  lanes  of  progress  which 
the  demands  of  science,  the  leadership  of  jurisprudence,  and  the 
needs  of  society  keep  creating.  The  Italian  Code,  instead  of 
being,  as  some  legislators  have  protested,  an  unalterable  and  closed 
body  of  doctrine,  will  prove  the  starting  point  and  the  inspiration 
of  future  progress. 

1  I  am  here  merely  summarizing  and  applying  the  ideas  in  my  work  al- 
ready cited,  "Delia  consuetudine  nei  suoi  rapporti  col  diritto  e  colla 
legislazione",  pp.  69  et  seq.  [appearing  in  the  same  volume  as  the  present 
discourse,  pp.  1-127.] 

2  Portalis. 


331 


§1] 


PART   II      NATIONAL    CODIFICATION 


[Chap.   IX 


Chapter  IX 
THE   COMMERCIAL   CODES 

By  Alfredo  Rocco  * 


§  1.  By  the  1850  s  French  Influ- 
ence Dominant. 

§  2.  Backwardness  of  Germany 
and  Italy. 

§  3.  Renascence  in  Germany ;  Work 
of  Thol  and  Goldschmidt. 


§  4.  The  German  Commercial 
Code  of  1861  and  its  Influ- 
ence. 

§  5.     France  since  1850. 

§  6.     Italy  since  1850. 


§  1.  By  the  1850  s  French  Influence  Dominant  through  the 
Commercial  Code  and  Judicial  Practice.  — ■  Towards  the  middle  of 
the  1800  s,  scientific  leadership,  both  in  legislation  and  judicial 
practice,  in  the  mercantile  field  undoubtedly  belonged  to  France. 
Here,  too,  her  notable  work  of  codification  had  assured  a  supremacy 
of  which  not  a  few  traces  remain  still  visible.  It  was  certainly 
not  because  the  French  Commercial  Code  of  1807  was  an  expression 
of  original  juridical  thought.  On  the  contrary,  the  law  which  it 
established  was  in  its  origin  largely  foreign  to  France ;  candor 
requires  us  to  note  that  Italy  had  furnished  these  origins.  As 
Fr emery,  one  of  the  most  talented  of  the  French  commercial 
jurists,  well  said  in  his  history  of  commercial  law :  whatever  the 
point  of  departure,  one  always  comes  to  Italy.  The  institutions 
and  rules  which  were  worked  out  by  the  Italian  commercial  cities 
of  the  Middle  Ages,  and  passed  into  France  during  the  1400  s  and 
1500  s,  found  in  the  Commercial  Code  of  Napoleon  a  complete, 
simple,  and  systematic  expression  ;  and  in  the  success  of  the  French 
armies  and  ideals  this  Code  was  given  the  means  to  conquer  the 
world.  Tims,  in  the  first  half  of  the  1800s,  the  French  Commercial 
Code  penetrated  (in  its  original  form  or  in  reproductions  scarcely 
distinguishable  from  it)  throughout  almost  the  whole  of  Europe 
and  the  States  of  South  America,  while  the  supremacy  of  French 

1  [This  Essay  appeared  in  the  Transactions  of  the  Fifth  Annual  Meeting 
of  the  Italian  Society  for  the  Progress  of  the  Sciences,  held  :ii  Rome  in 
L911  (pp.  645  655),  under  the  title  "  L<>  sviluppo  del  diritto  commercials 
aell'  ultimo  cinquantennio." 

The  author  is  professor  of  ( !ommercial  Law  in  the  University  of  Macerata 
and  the  Boceoni  Commercial  University  at  Milan,  and  also  lecturer  at  the 
Qniver  ity  of  Parma.  —  Ed.] 

332 


Chap.    IX]  COMMERCIAL  CODES  [§  2 

commercial  text- writers  and  judicial  practice  everywhere  asserted 
itself. 

The  success  was  well  deserved ;  for  the  scientific  and  practical 
cultivation  of  commercial  law  had  been  during  the  first  fifty  years 
of  the  century  intense  and  rich  in  France.  The  ground  had  been 
prepared  by  judicial  practice,  not  only  in  the  commercial  courts, 
where  beside  magistrates  sat  men  of  affairs  and  merchants,  but 
also  in  the  courts  of  appeal  and  the  Supreme  Court,  where  justice 
was  administered  by  eminent  men,  at  once  learned  judges  and 
famous  scholars.  Thus  had  been  built  up  an  imposing  body  of 
judicial  practice,  admirable  for  its  sagacity  and  common  sense  and 
for  its  precise,  simple,  and  clear  solutions,  which  had  in  a  remark- 
able degree  adjusted  the  written  rules  to  the  ever-increasing  and 
multiplying  requirements  of  business.  These  decisions  contained 
a  valuable  store  of  material ;  they  were  in  part  the  basis  of  a  truly 
brilliant  literary  activity,  in  which  all  the  elements  of  juridical 
investigation  were  utilized  with  a  wisdom  and  nicety  which  we  can 
but  admire  even  to-day.  While  in  Germany  the  dispute  raged 
between  the  followers  of  the  historical  school  and  the  philosophical 
school,  and  while,  as  a  result,  commercial  law  there  still  awaited  the 
impulse  for  a  fruitful  revival ;  in  France  a  wise  combination  of  the 
historical,  exegetical,  and  dogmatical  methods  had  constructed  the 
science  of  French  commercial  law  upon  solid  foundations. 

The  historical  sources  of  commercial  law  had  been  explored  with 
great  discernment  and  diligence  by  Pardessus  and  by  Fremery; 
Vincens  had  explored  juridical  principles  in  the  light  of  business 
experience  ;  Masse  had  produced  a  vigorous  and  profound  treatise 
upon  modern  commercial  law  from  the  dogmatic  and  systematic 
point  of  view ;  Pardessus  had  summarized  with  sculptured  brevity 
the  doctrines  of  contemporary  commercial  writers ;  Bravard- 
Veyrieres  had  with  subtle  and  penetrating  criticism  reviewed  and 
revised  all  the  reigning  doctrines  of  business  law.  Monographs, 
commentaries,  dictionaries,  and  reviews  containing  the  judicial 
decisions  had  accumulated  into  a  vast  material  for  study  and 
research.  The  science  of  commercial  law  in  France,  had,  in  short, 
during  the  first  fifty  years  of  the  century,  been  signally  active  in  all 
fields,  leaving  indelible  traces  everywhere.  In  maritime  law  and 
bankruptcy,  for  example,  it  lias  not  become  obsolete  even  to-day. 

§  2.  Backwardness  of  Germany  and  Italy.  —  The  conditions  for 
the  study  of  commercial  law  in  Germany,  on  the  other  hand,  were 
not  very  favorable,  during  almost  the  whole  of  the  first  half  of  the 
1800  s.     Until  the  adoption  of  the  law  of  Bills  of  Exchange  of  1847, 

333 


§  2]  PART   II      NATIONAL    CODIFICATION  [Chap.    IX 

there  was  no  effort  at  codification  of  the  civil  or  common  law. 
Amidst  the  confusion  of  study  and  research  which  the  historical 
school  had  stimulated  in  almost  all  the  fields  of  law,  commercial 
law  alone  remained  neglected.  As  to  scientific  literature,  commer- 
cial law  possessed  no  independent  treatise,  but  was  treated  briefly 
in  the  manuals  of  civil  law.  In  the  universities  it  was  studied  as 
part  of  German  private  law,  in  a  course  covering  a  few  weeks. 

But  while  the  decadent  situation  of  commercial  study  in  Ger- 
many constituted  a  deplorable  exception  amid  the  reawakening  of 
legal  science  in  all  other  fields,  and  while  everything  was  still  pre- 
paring for  the  coming  revival  in  the  field  of  commercial  law  also, 
in  Italy,  on  the  other  hand,  the  condition  of  things  was  even  more 
serious,  and  one  may  say  desperate.  Here,  in  fact,  not  alone 
commercial  law,  but  also  law  in  general  had  almost  universally 
reached  a  critical  stage.  It  is  not  surprising,  therefore,  that  the 
study  of  commercial  law,  which  had  had  its  periods  of  true  flo- 
rescence in  Italy,  fell  to  servile  reproductions,  not  infrequently 
compiled  from  ill-digested  French  doctrines.  While  codes  which 
were  only  translations  or  imitations  of  the  French  Commercial 
Code  were  in  force  in  various  parts  of  Italy,  it  was  quite  natural 
that  the  very  rich  and  splendid  body  of  French  judicial  practice 
should  be  accepted  as  authority  and  render  impossible  the  rise  of 
a  national  school  of  mercantile  law.  Though  the  1700  s  had  come 
to  a  close  with  names  that  are  still  remembered  with  honor,  such 
as  Azuni,  De  Jorio,  Baldasseroni,  yet  from  the  first  years  of  the 
1800  s  until  1850  we  do  not  find  (with  the  exception  perhaps  of 
Casarini's  treatise)  a  single  work  on  commercial  law  worthy  of 
mention  to-day.  Few  now,  in  fact,  even  among  the  initiated, 
know  the  names  of  Reale,  Zucadelli,  Salvi,  Castelli,  Cortu, 
Dalluschek,  Castellano,  Portula,  Sassi,  Montagnini,  Paroletti, 
Albertazzi,  Praxa,  and  Bronzini,  all  of  whom  wrote  treatises, 
commentaries,  and  encyclopedias  of  commercial  law,  deservedly 
doomed  to  oblivion. 

Such  was  the  state  of  affairs  at  the  opening  of  the  second  half  of 
the  1800  s.  French  legislation  and  science  predominated ;  the 
seed  of  German  scholarship  in  commercial  law  was  near  to  fruition  ; 
but  still  far  from  hope  of  revival  was  the  once  eminent  learning  of 
Italian  commercial  law. 

§   !.    Renascence  in  Germany ;    Work  of  Thol  and  Goldschmidt. 
\    the  previous  period  may  rightly  be  called  the  French  period, 
i lii    about  which  we  propose  to  speak  may  be  called  the  German 
period. 

334 


Chap.    IX]  COMMERCIAL  CODES  [§  3 

For  many  reasons  Germany  was  extremely  well  prepared  for  a 
vigorous  development  of  commercial  law.  The  revival  of  juridical 
research,  due  in  a  special  way  to  the  disciples  of  the  historical 
school,  had  given  to  the  study  of  private  law  a  considerable  impulse. 
The  German  science  of  private  law,  which  now  included  such  names 
as  Savigny,  Puchta,  Hugo,  Mittermaier,  and  Beseler,  could  not 
fail  to  turn  its  attention  to  the  hitherto  neglected  but  nevertheless 
promising  field  of  commercial  law.  Furthermore,  practical  neces- 
sities of  the  first  order  encouraged  this ;  German  commerce  was 
developing  vigorously  and  made  its  demands  heard  by  legislators 
and  jurists. 

The  new  era  of  German  commercial  law  opened,  then,  vigorously 
between  1840  and  1850.  The  most  important  and  significant  fact 
of  this  period  was  undoubtedly  the  elaboration  and  adoption  of 
the  Bills  of  Exchange  law  of  1S47.  This  was  a  piece  of  legislation 
admirable  for  its  technical  perfection  and  important  in  its  political 
significance,  in  that,  at  a  time  of  political  disunion,  it  was  a  solemn 
affirmation  of  the  unity  of  German  legal  thought.  It  may  be 
truly  said  of  this  law  that  it  wron  a  greater  success  than  the  French 
Commercial  Code;  gradually  but  surely,  the  German  lawr  of  Bills 
of  Exchange  circled  the  world.  Again  recently  it  triumphed  at  the 
Hague  Conference  (of  1910),  which,  in  drawing  up  a  draft  of  a 
uniform  law  of  exchange,  reproduced  along  its  fundamental  lines 
the  precise  principles  of  the  German  Act  of  1847. 

While  German  commercial  legislation  was  erecting  such  a  magnifi- 
cent monument  to  itself,  the  German  science  of  commercial  law 
was  also  developing  through  the  special  talent  of  Heinrich  Thol. 
How  Thol  was  able,  from  the  fragmentary,  incidental,  and  brief 
expositions  that  preceded  his  own,  to  pass  at  one  bound,  as  it  were, 
to  the  formation  of  an  organized  body  of  doctrine  such  as  is  con- 
tained in  his  celebrated  treatise  on  commercial  law  ("  Das  Handels- 
recht  "),  the  first  volume  of  which  dated  from  1841,  is  something 
which  even  to-day  arouses  our  admiration.  It  can  be  explained 
only  in  the  light  of  the  notable  development  to  which  German 
science  had  brought  the  study  of  the  history  and  system  of  the 
Pandects.  Thol,  in  fact,  created  German  commercial  law  almost 
from  nothing,  founding  it  upon  an  essentially  Roman  basis.  With 
profound  and  rigorous  logic  he  succeeded  in  extracting  from  that 
body  of  legal  doctrine,  more  than  a  thousand  years  old,  the  prin- 
cipal institutions  to  govern  the  latest  expressions  of  commercial 
activity. 

This  method  was  not  exempt  from  criticism,  but  it  was,  in  reality, 

335 


§  3]  PART   II      NATIONAL   CODIFICATION  [Chap.    IX 

the  only  one  with  which  he  could  work  at  that  time.  Lacking 
the  solid  basis  of  a  contemporary  legislation,  it  was  very  natural 
and  necessary  to  endeavor  to  utilize  the  Roman  law  by  adapting 
it  to  the  governance  of  the  new  relationships  growing  out  of  busi- 
ness. 

Thol  was  criticized  for  having  neglected  historical  research,  and 
for  not  having  taken  economic  factors  sufficiently  into  account  in 
the  reconstruction  of  current  commercial  law.  This  criticism, 
which  came  mostly  from  Thol's  opponent,  Goldschmidt,  and  which 
was  repeated  by  others,  does  not  appear  to  me  to  strike  true. 
Historical  research  is  useful  and  necessary  when  it  is  a  matter  of 
interpreting  legal  norms  which  are  the  fruit  of  long  evolution.  But 
that  was  not  the  case  with  Thol.  His  task  was  more  than  that  of 
an  interpreter  of  existing  legal  norms ;  it  was  to  create  a  new  legal 
system  for  a  series  of  relations  which  the  Roman  law  then  in  force 
did  not  cover  or  regulate.  Most  needful,  certainly,  on  the  other 
hand,  was  the  study  of  these  actual  relations  for  which  he  aimed  to 
establish  a  legal  discipline.  But  Thol  did  not  neglect  the  impor- 
tance of  such  research  ;  he  merely  maintained  (and  correctly)  that 
it  was  for  technical  and  economic  investigation  to  regulate  the 
relations  forming  the  subject  of  commerce,  and  that  this  was  not 
the  immediate  objective  of  legal  research.  And  the  result  of  his 
work  showed  that  he  had  followed  the  sound  course.  In  Thol,  in 
fact,  has  been  recognized  the  merit,  not  only  of  having  founded 
the  German  science  of  commercial  law,  but  also  of  having  con- 
structed so  solid  a  body  of  legal  doctrine  that  it  was  able,  until  the 
promulgation  of  the  general  German  Commercial  Code,  almost  to 
take  the  place  of  law.  And  upon  that  codification,  for  which 
Thol's  work  was  in  the  nature  of  a  preparation,  the  gifted  com- 
mercialist  exercised  a  decisive  influence. 

While  Thol,  mature  in  years  and  learning,  and  full  of  achieve- 
ment as  jurist  and  lawyer,  was  being  hailed  as  the  dean  of  German 
commercialists,  a  young  lecturer  in  the  University  of  Heidelberg, 
Levin  Goldschmidt,  founded  a  review  devoted  to  commercial  law 
(since  become  celebrated),  and  resolutely  headed  a  movement  to 
oppose  the  leadership  which  had  been  won  by  Thol.  Contrary  to 
the  hitter's  tendency  to  employ  in  the  study  of  current  law,  princi- 
pally if  not  exclusively,  the  element  of  system,  and  to  place  partic- 
ular importance  upon  the  search  for  guiding  principles  and  dogmas 
of  positive  law,  Goldschmidt  asserted  the  need  of  employing,  also 
and  primarily,  in  the  study  of  this  very  live  and  progressive  branch 
of  i  he  law,  research  into  economies  and  history.     He  opposed  the 

336 


Chap.    IX]  COMMERCIAL   CODES  [§  3 

method  of  "  dogmatic  isolation  "  ;  he  maintained  the  necessity  of 
a  treatment  in  harmony  with  all  the  various  and  fruitful  impulses 
which  have  been  successively  felt  in  the  history  of  our  science. 

Looking  back  as  impartial  and  disinterested  judges  upon  the 
conflict  between  these  two  eminent  writers,  we  must  indeed  admit 
to-day  that,  of  the  two,  Thol,  the  elder,  was  really  he  who  had 
the  more  modern  and  precise  conception  of  the  nature  of  law  and 
of  the  aim  of  the  science  of  law.  More  and  more,  in  fact,  Thol 
insisted  on  the  idea  that  his  aim  was  the  study  and  exposition  of 
positive  law  and  only  positive  law,  and  that  in  no  kind  of  law  would 
he  recognize  validity  outside  of  positive  law.  Goldschmidt,  on  the 
contrary,  believed  in  a  law  derived  from  the  inherent  "  nature  of 
things  "  and  their  relation,  alike  in  all  times  and  all  places ;  hence, 
for  him,  the  necessity  of  constant  recourse  to  the  "  nature  of  things", 
which,  like  all  other  followers  of  the  historical  school,  he  believed 
to  be  the  absolute  source  of  law.  Every  positive  law,  he  said,  is  the 
eternal  expression  and  the  recognition  of  those  natural  norms  of  law 
which  are  permanent  and  are  proper  to  the  relationships  of  the 
life  of  all  time.  And  thus,  while  Thol  may  be  placed  among  the 
precursors  of  legal  positivism,  Goldschmidt  (as,  indeed,  various 
others  of  the  historical  school)  must  be  considered  in  substance  as 
a  late  fruit  of  the  school  of  natural  law. 

However  doubtful  may  be  the  philosophical  premises  of  Gold- 
schmidt's  doctrine,  we  must  recognize  his  very  high  value  to  the 
science  of  commercial  law.  To  have  led  it  along  the  path  of  his- 
torical research  was  his  principal  merit ;  indeed,  we  may  say  that 
to  the  historical  reconstruction  of  commercial  law  Goldschmidt 
gave  the  most  and  best  of  his  forces.  Whether  the  value  of  the 
results,  especially  with  regard  to  the  interpretation  and  practical 
application  of  law,  equalled  the  enormous  effort  expended,  is  a 
point  upon  which,  as  things  stand,  one  might  not  care  to  pro- 
nounce definitely.  It  cannot  truthfully  be  denied  that,  from  the 
point  of  view  of  application  and  interpretation,  historical  research 
is  less  fruitful  in  commercial  law  than  in  other  fields  of  law.  In  a 
field  like  that  regulated  by  commercial  law,  which  is  in  a  continual 
state  of  transformation  and  evolution,  the  number  of  rules  and 
institutions  of  early  origin,  whose  value  cannot  be  appreciated 
except  through  long  historical  investigation,  is  relatively  rather 
few;  and  it  is  natural  that  present  principles,  evolved  under  the 
pressure  of  requirements  that  are  modern  and  always  felt,  have 
less  need  of  historical  study  to  be  correctly  understood  and  applied. 
In  commercial  law  the  contrary  phenomenon  occurs  to  what  we 

337 


§  3]  PART   II      NATIONAL    CODIFICATION  [Chap.    IX 

observe  in  other  fields  of  law,  for  example,  in  procedure.  In  these 
we  observe  the  survival,  intense  in  force  and  vast  in  scale,  of  forms 
and  rules  originating  in  other  epochs  to  meet  other  needs ;  but 
in  the  field  of  commercial  law  this  phenomenon  is  apt  to  be  more 
rare.  Rules  that  no  longer  answer  the  exigencies  of  commerce  are 
rapidly  eliminated ;  and  if  any  continue  to  remain  nominally  in 
force,  their  interpretation  no  longer  presents  any  interest,  simply 
because  it  is  useless  to  interpret  rules  that  are  no  longer  applied. 
All  this,  of  course,  does  not  take  away  the  ideal  and  scientific  value 
which  always  attaches  to  any  historical  research,  in  the  field  of 
commercial  law,  as  elsewhere.  From  this  point  of  view  Gold- 
schmidt  still  remains  the  supreme  master  to  whom  we  are  all 
indebted.  Furthermore,  Goldschmidt  labored  so  long  and  so 
profoundly  outside  the  historical  field  that  he  must  be  considered 
as  one  of  the  patriarchs  of  the  German  science  of  commercial  law. 
!  §  4.  The  German  Commercial  Code  of  1861  and  its  Influence.  — 
German  commercial  law  had  the  fortune  and  the  merit  of  being  able 
to  produce  quite  early  (scarcely  twenty  years  after  the  publication 
of  the  first  volume  of  Thol's  treatise)  such  a  legislative  work  of 
distinction,  in  respect  to  both  form  and  substance,  as  the  general 
German  Commercial  Code.  This  Code,  admirable  for  its  precision, 
its  arrangement,  and  its  completeness,  marked,  like  the  Napoleonic 
Code,  an  important  date  in  the  history  of  commercial  law.  The 
French  Code  was  the  first  to  affirm  clearly  the  objective  character  of 
commercial  law,  subsuming  also  into  this  law  the  isolated  acts  of 
commerce  occasionally  performed  by  non-merchants.  The  Ger- 
man Code  of  1861  later  enlarged  the  sphere  of  application  of  busi- 
ness law,  placing  under  commercial  law  also  those  acts  which  were 
unilaterally  commercial,  —  that  is,  all  those  acts  which  reflected  a 
mercantile  operation  from  the  point  of  view  of  but  one  participant. 
It  was  an  innovation  of  enormous  practical  importance,  when  we 
reflect  that  by  virtue  of  this  principle,  it  is  enough  to  have  con- 
tracted with  a  merchant  (that  is,  it  is  enough  to  have  accomplished 
one  of  the  most  frequent  and  usual  acts  of  life),  to  come  within  the 
application  of  commercial  law. 

If  the  influence  which  this  code  exercised  is  not  comparable  to  the 
French  Code,  it  was  nevertheless  considerable.  Promulgated  in 
Austria,  where  it  is  still  in  force,  it  influenced  in  a  notable  measure 
the  legislation  of  Hungary,  Holland,  Denmark,  Sweden,  Norway, 
Russia,  Switzerland,  and  of  the  various  Balkan  countries. 

With  the  law  of  Bills  of  Exchange  of  1847,  the  Code  of  Commerce 
of  1861,  and  the  Bankruptcy  law  of  1X77  (which  devised  a  rapid  and 

338 


Chap.    IX]  COMMERCIAL  CODES  [§  4 

effective  procedure,  common  alike  to  merchant  and  to  non-mer- 
chant), Germany  possessed  a  body  of  commercial  legislation  that 
was  original  and  thorough.  Now  if  to  this  solid  element  of  legal 
progress  be  added  a  wealth  of  literature,  vigorous  and  full  of 
profound  and  original  research,  and  a  learned  and  sane  judicial 
practice,  we  can  easily  understand  the  reasons  for  German  leader- 
ship in  the  field  of  commercial  law  during  the  second  half  of  the 
1800  s. 

It  is  possible  here  to  make  mention  of  names  only  within  the  most 
restricted  limits.  But  one  cannot  fail  to  record,  among  the  very 
numerous  body  of  German  commercialists,  some  of  those  to  whom 
our  science  owes  the  liveliest  gratitude :  Kuntze,  Endemann, 
Kohler,  Riesser,  Pappenheim,  Gierke,  Behrend,  Lehman,  Griinhut. 
Through  these  authors  whole  bodies  of  commercial  law  neglected 
by  French  legislation  and  jurists  found  satisfactory  legal  founda- 
tions :  the  theory  of  sources  was  elaborated ;  that  of  commercial 
transactions  was  revised  and  systemized ;  the  theory  of  instru- 
ments drawn  to  bearer  was  developed  upon  a  sound  plan ;  that  of 
the  bill  of  exchange  was  reformed ;  the  contracts  of  carriage, 
insurance,  and  account-current  were  studied ;  the  concept  of 
agency  was  fixed  and  its  theory  was  made  clear ;  the  moment  at 
which  a  contract  is  closed  was  established,  and  the  principle  of 
contracts  between  parties  at  a  distance  was  examined.  Every- 
where are  the  profound  and  enduring  traces  left  by  German  science 
during  this  period. 

One  should  not  conceal  the  fact  that  this  enthusiasm  for  research 
has  markedly  diminished  since  the  promulgation  of  the  German 
Civil  Code  of  1896.  Civil  codification  in  Germany  marked  the 
commencement  of  the  decadence  of  commercial  studies.  The 
coincidence  was  not  merely  accidental ;  it  resulted  from  causes 
that  are  not  difficult  to  explain.  Until  the  adoption  of  the  Civil 
Code,  the  fact  that  the  Commercial  Code  was  the  only  code  of 
private  law  in  force  in  Germany  greatly  aided  the  development  of 
commercial  law ;  for  as  commercial  codification  preceded  civil  co- 
dification, the  Commercial  Code  had  been  employed  in  the  regula- 
tion of  some  matters  not  strictly  commercial,  and  was  continually 
drawn  upon  by  the  civilists  to  provide  rules  for  those  new  civil 
relationships  for  which  the  Roman  law  was  insufficient.  After  the 
Civil  Code  was  published,  it  was  thought  necessary  to  rob  the  Code 
of  Commerce  of  all  that  did  not  strictly  relate  to  commerce.  There 
resulted  the  revised  Commercial  Code  of  1897,  in  which  commercial 
law  has  reverted  to  its  status  as  a  law  for  merchants  only,  and  the 

339 


§  4]  PART   II      NATIONAL    CODIFICATION  [Chap.    IX 

entire  legal  discipline  of  commercial  relationships  has  been  reduced 
to  a  much  smaller  number  of  rules  of  a  professional  character. 
When  the  practical  importance  of  the  study  of  commercial  law 
was  thus  diminished,  it  began  to  be  neglected,  and  the  whole 
attention  of  German  jurists  was  and  remains  concentrated  upon 
the  stupendous  work  of  the  civil  codification.  To  this  must  be 
added  the  fact  that,  even  in  the  field  of  civil  law,  codification  has 
had  the  effect  of  lowering  the  level  of  legal  study.  When  the  free- 
dom of  movement  and  research  was  lost  that  produced  a  system 
lacking  a  code  and  subject  through  centuries  to  the  elaboration  of 
jurists,  as  was  the  Roman  law  of  Germany,  the  German  science  of 
civil  law  seemed  to  have  received  a  blow.  From  the  courage  and 
patience  characteristic  of  its  dogmatic  principles,  it  descended  to 
the  more  ignoble  labor  of  a  cumbrous  exegesis.  This  crisis  in  the 
civil  law  has  naturally  had  its  reaction  on  commercial  law,  and 
has  aggravated  the  causes  of  the  decadence  of  commercial  studies 
which  began  more  than  ten  years  ago. 

§  5.  France  since  1850.  —  Rather  less  complex  and  important 
has  been  the  history  of  commercial  law  in  France  during  the  last 
fifty  years.  The  wonderful  vigor  of  the  first  half  of  the  century 
suffered  a  check  in  the  ten  years  that  followed  1850,  when  the 
decadence  began.  Little  interest  attaches  to  the  legislative  activ- 
ity of  this  period,  since  neither  the  law  of  18G7  nor  of  1893  on  com- 
panies, nor  that  of  1887  on  insolvency,  are  marks  of  original  and 
fruitful  legislative  activity.  After  the  production  of  a  few  com- 
mentaries and  treatises  of  some  value,  such  as  those  of  Alauzet,  and 
of  Delamarre  and  Lepoitvin,  authors  continued  for  years  and  still 
continue  to  copy  the  older  literature  without  endeavoring  to  im- 
prove upon  it.  French  science  for  the  last  fifty  years  has  been 
living  on  the  capital  accumulated  in  the  first  half  of  the  last  cen- 
tury. The  inheritance  was  rich ;  but  no  wealth  is  inexhaustible 
when  it  is  consumed  without  renewal.  Xow  the  truth  is  that 
France  has  produced  very  little  in  the  last  ten  years  in  the  field  of 
commercial  law ;  even  the  largest  and  most  well-known  treatise, 
that  of  Lyon-Caen  and  Renault,  is  but  an  encyclopedic  compila- 
tion, diligent  and  accurate,  of  all  that  has  been  written  and  decided 
in  Prance  in  commercial  matters.  But  it  is  not  a  work  of  any 
original  value.  There  have  been  efforts  to  discover  new  instru- 
mentalities :  suffice  to  mention  the  names  of  Wahl,  Saleilles,  Levy- 
Ullman,  and  above  all  of  Thaller,  to  whom  especially  the  French 
science  of  commercial  law  owes  great  thanks.  But  these  stand  out 
only  as  isolated  efforts  alongside  the  great  mass  of  compilations 

340 


Chap.    IX]  COMMERCIAL  CODES  [§  6 

which  repeat  to  satiety  what  has  already  been  written  in  Pardessus 
or  Vincens,  in  Bravard-Veyrieres  or  Besplay,  in  Masse  or  Alauzet. 

§  G.  Italy  since  1850.  —  It  remains  to  speak  of  Italy.  The 
deplorable  state  of  the  study  of  commercial  law,  which  still  con- 
tinued toward  the  middle  of  the  ISOOs  and  until  political  unity  was 
obtained,  produced  legislative  consequences  that  were  not  to  be 
evaded.  The  first  Commercial  Code  of  the  Italian  Kingdom, 
adopted  in  1865,  came  into  being  without  the  support  of  any  solid 
preparation  by  jurists  or  courts,  and  was,  in  reality,  a  mediocre 
revision  of  the  Code  of  King  Albert  of  1842,  which  in  turn  was  an 
almost  exact  reproduction  of  the  Napoleonic  Code,  modified  by 
the  law  of  1838  upon  bankruptcy.  About  this  mediocre  code 
there  grew  up  a  literature  that  was  commonplace,  but  somewhat 
superior  to  that  of  the  previous  barren  period.  Imitation  of  the 
French  commentators  still  persisted  ;  but  here  and  there,  especially 
through  the  influence  of  Filippo  Serafini  and  the  work  of  Ercole 
Vidari,  there  began  the  systematic  study  of  the  institutions  of 
commercial  law,  on  the  model  of  what  had  been  done  in  Germany. 
In  such  surroundings  was  planned,  discussed,  and  formulated  the 
new  Commercial  Code  of  1S82,  the  preparatory  work  of  which  had 
begun  in  1869.  It  was  a  labor,  indeed,  of  willing  and  talented  men, 
but  there  was  lacking  the  basis  of  a  national  tradition,  of  a  scientific 
development  that  was  truly  Italian ;  and  they  had  to  be  content 
with  borrowing  the  various  elements  of  reform  here  and  there 
from  foreign  legislations.  x\nd  since  in  their  diligence  they  did  not 
desire  to  imitate  one  legislation  alone,  but  took  one  institution 
here  and  another  there,  they  enjoyed  the  illusion  of  having  produced 
a  complete  and  perfect  work  and  of  having  endowed  Italy  with  a 
commercial  code  superior  to  any  then  in  force.  They  had  instead 
created  a  mosaic,  in  which  the  general  principles  were  taken  chiefly 
from  the  German  Code,  the  law  of  bills  of  exchange  from  the  Ger- 
man ordinance  of  1847 ;  of  companies  from  the  Belgian  law  of 
1873 ;  maritime  law  from  the  French  Code ;  and  bankruptcy 
from  the  French  law  of  1838. 

Only  since  1880,  that  is,  since  the  adoption  of  the  Commercial 
Code,  did  the  period  of  true  renascence  of  the  study  of  commercial 
law  begin  in  Italy.  Two  lines  of  influences  brought  this  about. 
On  the  one  hand  were  the  improvement  in  the  economic  conditions 
of  the  country  and  the  constant  renewal  of  business  activity, 
which,  beginning  after  1870,  has  continued  constantly  to  this 
day  in  spite  of  the  check  due  to  the  crisis  of  1890  to  1896.  On  the 
other  hand  was  the  rise  of  the  study  of  Roman  law,  which  began 

341 


§  6]  PART   II      NATIONAL   CODIFICATION  [Chap.    IX 

also  after  1870.  From  Roman  law,  as  always  happens,  came  light. 
And  when  the  study  of  Roman  law,  especially  through  the  work  of 
Filippo  Serafini,  Vittorio  Scialoia,  and  Carlo  Fadda,  had  attained 
a  certain  point  of  development  and  diffusion,  knowledge  of  method 
was  spread,  and  produced  in  commercial  law,  as  in  civil  and  public 
law,  the  movement  which  was  to  lead  to  the  reawakening.  In  this 
the  greatest  share  of  merit  undoubtedly  belongs  to  Cesare  Vivante, 
who  succeeded  in  opening  a  new  path  for  the  Italian  science  of 
commercial  law.  Between  the  strictly  exegetical  method  of  the 
French  and  the  historical  and  dogmatic  method  of  the  Germans, 
Vivante  sought,  by  investigating  the  technical  and  economic 
nature  of  commercial  relations,  to  find  the  elements  of  a  legal  recon- 
struction that  would  be  more  alive  and  responsive  to  the  real 
exigencies  of  business.  His  insistence  of  this  direction  was  not 
entirely  new;  but  new,  certainly,  was  its  application  and  new 
above  all  were  the  results  obtained.  Through  Vivante  to-day  the 
Italian  school  of  commercial  law  has  established  itself  with  traits 
of  its  own,  alongside  the  French  and  the  German  schools.  Like 
the  former  it  values  exegesis,  and  like  the  latter  it  values  system ; 
but  from  the  French  it  is  distinguished  by  a  deeper  analysis  of 
jural  concepts,  and  from  the  German  by  a  more  accurate  study  of 
the  facts  and  by  a  quicker  appreciation  for  the  reality  of  social 
relations.  Italian  commercial  text-writers  have  made  a  particu- 
larly notable  progress  in  the  last  ten  years,  chiefly  in  the  work  of 
the  excellent  "  Rivista  di  diritto  commerciale  ",  perhaps  the  best 
of  all  the  reviews  of  its  kind,  Italian  or  foreign.  Sraffa,  who  directs 
it  along  with  Vivante,  has  succeeded  in  gathering  about  him  the 
best  scholars  of  civil  and  Roman  law  and  of  legal  history,  and  they 
have  brought  the  treasures  of  their  learning  and  their  experience 
to  the  elaboration  of  the  new  Italian  commercial  law. 

Thus  Italian  science  has  succeeded  upon  several  points  in  pro- 
nouncing a  word  that  must  remain  definitive.  One  may  mention 
particularly  the  general  theory  of  instruments  of  credit,  including 
those  made  to  bearer,  to  order,  and  to  specific  persons,  which  we 
owe  to  Vivante ;  the  demonstration  of  legal  personality  in  com- 
mercial associations,  by  Bonelli ;  the  relations  of  principal  and 
agent,  explained  by  Sraffa  and  Vivante ;  the  distinction  between 
moratory  and  compensatory  interest,  by  Bolaffio ;  the  doctrine  of 
silence  in  the  acceptance  of  contracts,  by  Bonfante.  And  in  this 
brief  mention  we  have  not  included  the  varied  subjects  in  which 
the  studies  of  the  Italian  commercialists  have  greatly  contributed 
to  the  advancement  of  this  very  live  and  progressive  branch  of  legal 

342 


Chap.    IX]  COMMERCIAL   CODES  [§  6 

science,  —  studies  which  range  from  the  doctrine  of  commercial 
acts  to  bankruptcy,  from  the  theory  of  association  to  insurance, 
and  include  almost  the  entire  field  of  commercial  law. 

Undoubtedly  Italy  is  in  a  period  of  leadership,  in  notable  con- 
trast with  the  decadence  of  commercial  studies  in  some  other 
countries.  May  it  not  be  that  some  day  once  more,  as  in  the  cen- 
turies long  passed,  Italy's  may  be  the  distinction  of  shaping  the  laws 
of  the  world's  commerce  ? 


343 


Part  III 

THE   MOVEMENT   FOR   THE   INTERNATIONAL 
ASSIMILATION   OF   LAW 


Chapter  X.    The  Beginnings  of  the  International  Assimi- 
lation of  Commercial  Law. 

Chapter  XI.    The  Progress  of  the  Unification  of  Maritime 
Law. 

Chapter  XII.    The  History  of  Unification  by  International 
Unions  of  Official  Experts. 

Chapter  XIII.    The  Harmonization  of  the  Rules  for  Con- 
flict of  Laws. 

Chapter  XIV.    A  World  Common  Law  :  its  Need,  its  Scope, 
and  its  Prospects. 


Chap.  X] 


COMMERCIAL   LAW 


Chapter  X 

THE   BEGINNINGS  OF  THE  INTERNATIONAL  ASSIMILA- 
TION OF   COMMERCIAL  LAW 

By  Georg  Cohn  * 


§1. 

§2. 


§3. 
§4. 

§5. 

§6. 

§7. 

§8. 
§9. 


Interchange  of  National  Laws. 

(I)  Mutual  Assimilation  of 
Commercial  Law ;  the  Be- 
ginnings of  the  Idea. 

Progress  of  the  Movement. 
Practical     Fruition     of     the 
Movement. 

(II)  The     Law     of     Railway 
Freights. 

The  Berne  Draft  Conventions. 

(III)  The  Law  of  Negotiable 
Instruments. 

Attempts  at  Uniformity. 
The    Bremen    and    Antwerp 
Drafts. 


§10. 
§11. 

§  12. 
§  13. 

§  14. 

§15. 

§16. 
§17. 

§18. 

§19. 


Difficulties  in  the  Way  of 
Uniformity. 

Further  Obstacles  Con- 
sidered. 

Existing  Types  of  Law. 

(IV)  Maritime  Law  of  Gen- 
eral Average. 

International  Differences  in 
Detail. 

The  Need  for  Uniformity. 

The  York  Rules. 

The  York  and  Antwerp 
Rules. 

Uniformity  by  Mercantile 
Agreement. 

Conclusion. 


§  1.  The  Interchange  of  National  Laws.  —  "  Nature  herself," 
says  Lord  Bacon,  "  supplies  a  common  wellspring  of  justice,  at 
which  all  laws  take  their  origin ;  yet  the  laws  in  different  lands 
differ,  just  as  the  brooks  which  come  from  the  same  spring  take 
on  the  color  of  the  soil  over  which  they  flow."  2 

However  plausible  such  a  comparison  may  appear,  it  is  true  to  a 
limited  extent  only.     Even  if  we  should  substitute  for  the  laws  of 

1  [Professor  of  German  Private  Law,  of  Commercial  Law,  of  German  and 
Swiss  Legal  History,  and  of  Patent,  Trademark,  and  Copyright  Law,  in 
the  University  of  Zurich  ;  formerly  Professor  in  the  University  of  Heidel- 
berg;  associate  editor  of  the  "Zeitschrift  fur  vergleichende  Rechts- 
wissenschaft." 

This  Essay  was  published  in  1888  as  one  of  three  addresses  on  related 
subjects  ("Drei  Rechtswissenschaftliche  Vortrage  ",  Carl  Winter,  Heidel- 
berg). 

The  sequence  of  historical  events,  on  the  topics  here  covered,  has  been 
brought  down  to  date,  in  the  field  of  the  law  of  Commercial  Paper,  by 
Ernest  G.  Lorenzen,  Professor  of  Law  in  Yale  University,  and  a 
member  of  the  present  Editorial  Committee ;  and  in  the  other  fields,  by 
Chapter  XII  following.  — A  small  portion,  duplicating  the  events  recorded 
in  other  chapters,  has  here  been  omitted.  —  Ed.] 

2  Cf.  Hamaker,  "Das  Internationale  Privatrecht,  seine  Ursachen  und 
seine  Ziele  ",  1878,  p.  9. 

347 


§  1]  PART  III      UNIFICATION   OF  LAW  [Chap.    X 

various  lands  those  of  various  nations,  the  words  of  the  great  Eng- 
lish philosopher  would  be  but  partially  true.  What  Bacon  seems 
to  overlook,  and  what  even  Montesquieu  does  not  seem  to  com- 
prehend with  sufficient  clearness,1  is  the  principle  of  organic  evolu- 
tion of  law.  Even  within  the  same  nation  and  in  the  same  region, 
the  laws  gradually  change  their  color.  The  law  of  each  individual 
nation  also  has  its  youth,  as  well  as  its  age.  The  factor  which  far 
more  truly  determines  the  color  of  the  law  and  might  with  greater 
justice  be  compared  to  the  brook  in  Bacon's  illustration,  is  the  stage 
of  civilization  a  nation  has  reached,  or  the  degree  of  its  intellectual 
development,  as  determined  by  its  religion,  its  education,  its 
science,  and  its  economic  activities.2  Wherever  we  find  the  same 
stage  of  civilization,  there  we  shall  also  find  a  surprising  similarity 
in  the  law.  The  startling  contrast  between  the  modern  laws  of 
what  are  now  civilized  nations  and  the  primitive  legal  customs  of 
those  tribes  we  are  wont  to  call  "  savage  ",  disappears  if  only  we 
go  back  far  enough  to  the  days  where  the  former  first  emerge  into 
the  light  of  history.  Then  we  find  in  them  also  such  institutions 
as  the  blood  feud,  purchase  of  brides,  the  creditor's  right  to  kill 
his  debtor,  and  slavery.3 

However,  it  is  not  merely  the  application  of  Bacon's  metaphor 
that  does  not  altogether  fit ;  we  might  also  criticize  the  illustration 
itself.  For  is  it  always  the  soil  of  its  bottom  from  which  the  brook 
takes  its  color?  Do  not  strange  affluents  and  atmospheric  pre- 
cipitation change  its  tints,  not  to  speak  of  foreign  matter  deliber- 
ately thrown  into  it  ?  And  is  it  different  with  law  ?  We  need 
but  recall  the  numerous  "  receptions  ",  or  borrowings  of  laws  from 
foreign  nations,  in  order  to  recognize  that  the  exclusive  emphasis 
placed  on  the  territorial  or  national  element  in  the  growth  of  law 
is  equivalent  to  the  exaggeration  of  an  idea  which  in  itself  is  not 
without  truth.4  There  is  no  people  in  existence  that  has  not 
borrowed  a  portion  of  its  law. 

It  may  be  doubtful  to  what  extent  that  ancient  seat  of  civiliza- 
tion, Egypt,  influenced  Mosaic  or  Hellenic  law ;  but  we  know  how 
much  Rome  borrowed  from  Greece  and  the  East,5  and  how  after- 

1  Cf.  Laboulaye,  in  "Revue  de  droit  international",  Vol.  1,  p.  170: 
"This  confusion  of  different  ages,  this  failure  to  recognize  the  law  of 
development,  is  to-day  for  us  the  greatest  defect  in  'L'esprit  des  lois.'  " 

2  Cf.  especially  Kohlcr,  "Das  Reoht  als  Kulturerscheinung",  1885, 
p.  6,  where  he  speaks  of  "law,  the  child  of  civilized  life." 

3  Kohler,  loc.  cit.,  pp.  7,  17,  20  et  seq. ;  Kohler,  "Shakespeare  vor  dem 
Forum  der  Jurisprudenz  ",  1883,  pp.  7,  131  et  seq. 

4  Cf.  Jhering,  "  Geist  des  Romischen  Rechts",  I,  pp.  5  et  seq. 

5  Cf.  Revillout,  "Les  obligations  en  droit  egyptien  compare  aux  autres 
droits  de  l'antiquite." 

348 


Chap.  X]  commercial  law  [§  1 

wards  these  borrowings  were  passed  on  to  the  whole  of  Europe.1 
During  the  Middle  Ages,  when  people  were  prone  to  submit  to 
authority,  when  there  was  a  lack  of  historical  criticism  and  the 
sense  of  nationality  was  comparatively  little  developed,  we  find 
throughout  several  centuries  a  series  of  such  borrowings  on  a  large 
scale.  Not  merely  did  Rome  with  its  law  for  a  second  time  con- 
quer the  Western  world ;  Mosaic  rules  also,  in  the  train  of  the 
Church,  penetrated  the  Occident  from  the  Orient,  changing  the 
criminal  laws,  establishing  the  law  of  tithes,  multiplying  matri- 
monial incapacities,  fundamentally  altering  the  nature  of  kingship. 
Italian  commercial  customs  were  carried  far  to  the  northward ; 
on  board  of  ships,  Mediterranean  maritime  law  reached  the  most 
remote  nations ;  the  law  of  the  Saxons  ("  Sachsenspiegel  ")  was 
transplanted  to  Poland  ;  the  law  of  German  cities  was  brought  to 
Slavic  and  Hungarian  districts.  Recent  investigations  have  shown 
the  great  influence  of  Christian,  Mosaic,  Talmudic,  and  even  Mos- 
lem law  among  the  Armenians  ;  and  similarly  it  has  been  found  that 
Hindu  laws  were  "  received  "  to  a  great  extent  by  the  Burmese.2 

Looking  at  modern  times,  numbers  of  borrowings  recur,  in 
matters  both  of  form  and  of  substance  !  The  conquests  of  the 
French  Code  Civil  survived  those  of  French  armies.  Such  institu- 
tions as  the  State's  attorney,  juries,  representative  government,  — 
all  these  are  nothing  but  foreign  law  appropriated  by  one  country 
from  another. 

The  idea  of  "  reception  "  has  become  so  familiar  to  us  on  the 
Continent  that  it  is  an  invariable  custom  for  governments,  on 
introducing  a  bill,  to  include  in  its  explanatory  report  submitted 
to  the  Parliament,  a  synopsis  of  foreign  legislation  on  the  subject 
under  consideration.  A  modern  legislator  may  very  properly  care 
far  less  as  to  the  foreign  origin  of  a  legal  institution  than  as  to  its 
practical  utility. 

The  nations  of  Europe,  starting  perhaps  with  a  small  stock  of 
common  juristic  notions  by  reason  of  their  common  Aryan  origin,3 
have  produced  a  body  of  legal  institutions  and  legal  rules  whose  basic 
similarity  is  due  partly  to  their  similar  stage  of  civilization,  partly 
to  these  "  receptions."  This  body  of  law,  though  not  completely 
identical,  is  so  nearly  related  and  similar  that  we  may  very  well 
speak  of  a  general  European  law,  or  an  international  common  law. 

1  Voigt,  "Das  Jus  naturale",  IT,  pp.  606,  636,  644  et  seq. ;  Kuntze, 
"Kursus  des  romischen  Rechts",  2d  ed.,  p.  125,  §  205,  n.  4. 

2  Kohler,  "Recht  der  Birmanen",  in  "Zeitschrift  fur  vergleichende 
Rechtswissenschaft  ",  VI,  pp.  161  el  seq.;  VII,  pp.  385  et  seq. 

3  Cf.  Bernhoft,  ibid.,  I,  pp.  5  et  seq. 

349 


§  1]  PART    III       UNIFICATION    OF   LAW  [Chap.    X 

To  analyze  this  common  possession,  to  separate  what  is  alike 
from  what  is  dissimilar,  is  part  of  the  task  incumbent  on  that 
youngest  branch  of  legal  science,  comparative  law,  or  (more  cor- 
rectly) the  comparative  method  of  legal  science.  It  is  but  part 
of  its  task,  for  the  aims  of  that  science  are  higher  and  greater. 
Nobody  has  conceived  them  more  loftily  or  described  them  more 
clearly  than  Feuerbach,  when  he  says :  "  Just  as  the  comparison 
of  various  tongues  produces  the  philosophy  of  language,  or  linguistic 
science  proper,  so  does  a  comparison  of  laws  and  legal  customs  of 
the  most  varied  nations,  both  those  most  nearly  related  to  us  and 
those  farthest  removed,  create  universal  legal  science,  i.e.,  legal 
science  without  qualification,  which  alone  can  infuse  real  and 
vigorous  life  into  the  specific  legal  science  of  any  particular 
country." 

Although  comparative  legal  science  is  yet  but  a  youthful  science, 
yet  it  has  already  given  vogue  to  a  new,  vital,  and  promising  princi- 
ple, viz. :  The  comparison  of  laws  is  followed  by  the  mutual  assimi- 
lation of  laws.  The  former  is  engaged  in  discovering  likenesses, 
the  latter  produces  likenesses ;  one  attempts  to  establish  a  sys- 
tematic theory,  the  other  aims  to  create  a  practical  code.  The 
international  codification  of  law  !  It  is  not  very  long  ago  that 
such  a  proposition  would  have  produced  nothing  but  a  smile.  The 
time  was  that  a  codification  of  the  law  of  nations,  and  still  more  a 
code  of  the  civil  law  common  to  the  whole  world,  would  have  been 
considered  a  wild  flight  of  fancy.  Even  to-day  we  could  not  but 
reject  as  Utopian  any  proposal  to  draw  up  a  universal  code  con- 
taining a  complete  body  of  municipal  law  for  all  nations. 

Fortunately,  however,  those  who  are  interested  in  the  problem 
of  assimilating  the  laws  of  various  countries  have  in  mind  no  such 
plans  as  that.  They  willingly  leave  them  to  idealistic  dreamers, 
who  may  amuse  themselves  with  them  as  others  have  amused 
themselves  with  world  governments,  world  languages,  and  the 
like.  The  promoters  of  the  international  assimilation  of  law,  on 
the  other  hand,  are  experienced  lawyers,  practical  men  of  business, 
and,  behind  them  all,  even  the  European  governments  themselves. 
They  are  looking  for  nothing  but  what  is  within  the  bounds  of 
really  urgent  needs,  in  order  to  remove  differences  that  have  no 
sort  of  justification. 

§  2.  (i.)  Mutual  Assimilation  of  Commercial  Law ;  the  Begin- 
nings of  the  Idea.  —  The  idea  of  legal  assimilation  has  arisen  most 
actively,  and  probably  earliest  also,  within  the  field  of  commercial 
law,  although  it  is  not  confined  thereto.     For  commercial  law  is 

350 


Chap.    X]  COMMERCIAL   LAW  [§  2 

least  of  all  tinged  with  national  idiosyncrasies ;  it  is  not  only 
international  in  its  traits,  but  even  (to  use  the  expression  in- 
vented by  Goldschmidt)  anational.1 

As  far  back  as  the  beginning  of  the  1800  s,  during  the  discussions 
on  the  draft  of  the  French  Code  of  Commerce,  the  desire  was  ex- 
pressed to  create  a  commercial  law  which  might  be  adopted  as  it 
stood  by  all  the  commercial  nations  of  the  globe.  Thus  it  was 
prophesied  by  the  Councillor  of  State,  Corvetto,  that  the  bill  he 
advocated  before  the  Legislative  Council  was  destined  to  become 
"  the  common  law  of  Europe."  2  Although  this  forecast  has  not 
been  verified  literally,  yet  the  fact  remains  that  the  French  Code 
of  Commerce  has  exerted  the  widest  influence  on  the  modern  com- 
mercial law  of  most  countries  in  both  hemispheres.3 

It  was  expected  that  the  Code  of  Commerce  would  drive  out 
other  systems  of  law  and  thus  dominate  the  field.  The  idea  of 
assimilating  the  laws  of  different  countries  by  treaties  accepting  a 
uniform  law  was  far  from  the  minds  of  its  promoters.  Neverthe- 
less, it  is  true  that  assimilation  has  been  furthered  materially  by 
the  fact  that  so  many  nations  did  adopt  or  copy  this  code,  and 
perhaps  assimilation  would  never  have  become  possible  without 
the  French  Code.  But  to  arouse  a  desire  for  assimilation  of  laws, 
it  was  first  necessary  for  legal  science  to  do  the  preliminary  labor  of 
comparison  of  laws.  As  one  might  say,  it  was  first  necessary  to 
strike  a  balance,  or  to  take  an  inventory  of  those  legal  principles 
already  common  to  the  various  nations. 

This  task  was  undertaken,  as  far  back  as  the  year  1844,  by  a 
French  writer,  Antoine  de  St.  Joseph,  who  published  a  parallel 
between  the  commercial  laws  of  forty-four  States.  With  all  its 
merits,  his  work  is,  in  some  parts,  not  altogether  reliable.4  Six 
years  later,  an  Englishman,  Leone  Levi,5  attempted  to  solve  the 
same  problem.  His  work  is  of  greater  importance,  not  merely 
because  the  author  compares  the  commercial  laws  of  fifty-nine 
States  with  those  of  England,  but  especially  because,  in  his  preface, 
Levi  for  the  first  time  gave  distinct  expression  to  the  idea  of  a  com- 
mon, international  commercial  code,  and  at  the  same  time  outlines 
a  complete  plan  for  realizing  this  idea. 

In  his  preface,  which  is  addressed  to  the  Prince-Consort  of  Great 
Britain,  Levi  acknowledges  that  two  events  had  confirmed  his 

1  Goldschmidt,  "Handbuch",  I,  p.  375. 

2  Cf.  "Journal  des  Economistes",  3d  series,  XI,  pp.  209,  216. 

3  Cf.  Goldschmidt,  "Handbuch",  I,  pp.  56,  212  et  seq. 

4  Cf.  Goldschmidt,  "Handbuch",  I,  p.  30. 

5  Cf.  as  to  his  work,  Goldschmidt,  loc.  cit.,  pp.  30  and  31. 

351 


§  2]  PART   III      UNIFICATION    OF   LAW  [Chap.    X 

conviction  that  a  formal  assimilation  of  commercial  codes,  which 
even  then  covered  subject  matters  so  nearly  related,  would  be 
feasible.  One  of  these  was  the  enactment  of  the  uniform  Negotiable 
Instruments  law  of  the  German  Confederation,  which  succeeded 
in  abolishing  by  one  stroke  nearly  sixty  different  bodies  of  law. 
The  other  event  was  the  opening  of  the  International  Exposition 
at  London,  promoted  by  the  Prince-Consort.  It  is  no  mere 
accident  that  the  opening  of  the  International  Exposition  and  the 
publication  of  a  plan  for  assimilating  the  commercial  laws  should 
occur  at  the  same  moment.  The  same  note  was  struck  at  nearly 
all  subsequent  world's  fairs.  The  universality  of  commercial 
intercourse,  so  clearly  brought  out  by  international  expositions, 
could  not  but  awaken  the  idea  of  the  universality  of  the  law  of  such 
intercourse.  Even  though  there  was  some  superabundance  of 
phrase-making;  even  though  chilling  disappointments  followed 
expectations  that  were  a  little  oversanguine,  yet  we  may  enumer- 
ate as  one  of  the  most  beneficial  effects  of  international  ex- 
positions this  arousing  of  interest  in  the  movement  for  legal 
assimilation. 

Oar  English  author  was  one  of  those  who  were  thus  filled  with 
sanguine  hopes  by  the  Exposition.  His  plan  was  to  call  two  inter- 
national conferences,  composed  of  three  delegates  each  from  every 
principal  commercial  city,  and  to  offer  a  number  of  prizes ;  and  he 
expected  by  this  scheme  to  see  the  great  work  completed  in  not 
more  than  two  or  three  years ;  he  even  prepared  for  the  future 
growth  of  his  universal  commercial  code  by  the  method  of  holding 
periodical  delegate  conferences,  "  adjuvandi,  supplendi,  corrigendi 
causa."  The  Prince-Consort,  although  not  failing  to  recognize 
the  merits  of  Levi's  proposition,  proved  to  be  less  optimistic ;  in 
fact,  he  did  not  consider  the  plan  practicable.1  And  in  other 
quarters  also,  the  idea  of  a  universal  commercial  code  continued 
to  be  flouted.2 

§  3.  Progress  of  the  Movement.  —  Yet  the  idea  conceived  by 
the  English  jurist  was  not  to  go  wholly  unrecognized ;  it  found  a 
responsive  hearing  in  a  quarter  to  which  it  was  not  primarily 
addressed,  —  on  the  other  side  of  the  British  Channel,  in  the 
Tuileries. 

1  Cf.  Levi,  "Commercial  Law,  Its  Principles  and  Administration  ;  or  the 
Mercantile  Law  of  Great  Britain  compared  with  the  codes  and  laws  of 
commerce  of  the  following  (59)  mercantile  countries",  1850,  Vol.  I,  preface. 
See  also  Goldschmidt,  p.  30;    Thol,  "Handelsrecht",  pp.  34,  36. 

2  Burchhardt-Furstenberger,  "Entwurf  zu  einer  Schweizer.  Wechselord- 
nung  mit  Motiven",  Zurich,  1857,  p.  12. 

352 


Chap.    X]  COMMERCIAL  LAW  [§  3 

Napoleon  III  was  fond  of  adopting  clever  ideas,  especially  those 
of  an  international  character.  Moreover,  he  was  accustomed  to 
regard  movements  towards  a  world  union  as  part  of  his  inherited 
programme,  for  it  was  from  St.  Helena  that  the  watchword  had 
issued  :  "  Une  loi,  un  poids,  une  monnaie,  une  mesure."  *  Conse- 
quently, Louis  Napoleon  deemed  the  proposals  of  the  British 
writer  at  least  worthy  of  careful  examination.  A  committee  was 
therefore  appointed,  composed  of  three  members  of  the  Legislative 
Section  of  the  Council  of  State ;  M.  Suin  being  the  chairman. 
Unfortunately,  Suin  (as  is  admitted  by  his  own  countryman, 
Parieu)  was  not  without  that  sort  of  feeling  of  national  superiority 
which  had  led  M.  Corvetto  to  assert  in  1807  that  "the  com- 
mercial code  then  drawn  up  at  Paris  was  to  become  the  law  of  all 
Europe."  While  Suin  would  have  been  please  1  to  see  the  adop- 
tion of  the  French  Commercial  Code  by  all  the  other  nations,  he 
was  averse  to  the  idea  that  France  also  should  concede  something 
and  should  assimilate  her  own  law  to  that  of  other  peoples. 
Nevertheless,  by  1855,  even  Suin  was  obliged  to  admit  that 
there  were  some  parts  of  commercial  law  in  which  "  the  task  of 
making  the  law  uniform  would  not  encounter  the  same  insuper- 
able obstacles  as  in  the  rest  of  the  law  of  commerce."  As  such 
parts  Suin  designated  (in  accord  with  the  entire  committee) 
negotiable  instruments,  bottomry,  and  transportation  by  sea  and 
land.2 

Although  the  whole  matter  was  put  at  rest,  so  far  as  Napoleon 
III  was  concerned,  by  Sum's  report,  it  was  impossible  that  so 
grand  an  idea  as  that  of  a  universal  law  of  commerce  should 
be  laid  aside  entirely.  It  emerged  again  and  again,  sometimes 
in  its  original,  sometimes  in  a  modified  form.  It  was  energetically 
advanced  by  Louvet,  the  president  of  the  Commercial  Court  of 
Paris,  in  his  inaugural  address,  in  1862.  In  the  French  Legislature, 
the  question  was  raised  by  Gamier-Pages,  in  an  interpellation 
directed  to  the  Government.3  During  the  same  year,  the  "  Asso- 
ciation internationale  pour  le  progres  des  sciences  sociales  "  was 
founded  in  Belgium,  and  its  First  Section  was  devoted  to  compara- 
tive legal  science.  At  the  four  congresses  held  by  this  important 
body  during  the  years  1862-1865,  a  number  of  questions  regarding 
the  law  of  commercial  intercourse  were  discussed  in  detail,  espe- 

1  Cf.  "Journal  des  Economistes",  3d  ser.,  VI,  p.  321. 

2  "Journal  des  Economistes",  3d  ser.,  XI,  p.  217,  in  Parieu' s  reply  to 
Charles  le  Touze. 

3  "Journal  des  Economistes",  3d  ser.,  X,  p.  71,  note  2. 

353 


§  3]  PART   III      UNIFICATION   OF   LAW  [Chap.    X 

cially  the  international  recognition  of  foreign  corporations  and  the 
preparation  of  an  international  law  of  negotiable  instruments.1 

A  further  stimulus  was  given  by  the  two  International  Exposi- 
tions at  Paris,  in  1867  and  1878.  In  1867,  an  "  Association  inter- 
nationale  pour  faciliter  le  developpement  du  commerce",  which 
indeed  came  to  nothing,  framed  plans  of  such  far-reaching  scope  as 
the  "uniformity  of  commercial  legislation  and  jurisdiction",  and 
even  the  "  uniformity  of  private  law  so  far  as  it  relates  to  inherit- 
ance, sales,  mortgages,  and  property  of  foreigners."  2  In  1878, 
besides  three  congresses  dealing  with  the  various  species  of  intel- 
lectual property,  and  an  international  congress  for  the  promotion 
of  means  of  transportation  (which  also  discussed  the  law  of  rail- 
way freights),  there  was  held  an  "  International  Congress  of  Com- 
merce and  Industry."  The  latter  not  only  expressed  a  desire  for 
an  international  commercial  code,  but  appointed  a  committee 
to  draw  up  a  set  of  fundamental  principles  for  such  a  code,  which 
were  to  be  submitted  to  a  new  congress  to  be  called  at  Brussels  in 
1880.3 

§  4.  Practical  Fruition  of  the  Movement.  —  The  failure  of  Levi's 
plan  is  important  not  only  from  a  historical  but  also  a  practical 
point  of  view,  though  that  importance  may  be  negative  only.  It 
confirms  the  experience  that  one  injures  the  cause  he  would  serve 
by  demanding  too  much.  The  whole  wide  field  of  commercial 
law  cannot  (in  our  opinion)  be  regulated  internationally  at  one 
stroke ;  nor  even  is  such  immediate  regulation  of  the  whole  desir- 
able. For  instance,  one  can  hardly  say  that  the  legal  differences 
regarding  the  position  of  commercial  employees  have  grown  intoler- 
able ;  similarly,  the  continental  system  of  registration  of  commer- 
cial firms  is  so  closely  connected  with  public  administrative  law 
that  one  could  scarcely  count  on  getting  all  countries  to  agree  on 

1  Cf.  T.  M.  C.  Asser,  "Droit  international  prive  et  droit  uniforme",  in 
"Revue  de  droit  international  et  de  legislation  compare",  XII,  pp.  3 
and  4;  the  same,  in  "Annates  de  1' Association  internationale  pour  le 
progres  des  sciences  sociales",  "Congres  de  Gand",  1863  (Brussels,  1864)  ; 
Pa  [ipcnheim  in  "Zeitschrift  fiir  Handelsrecht",  Vol.  28,  p.  512.  The  credit 
for  these  Congresses  is  due  largely  to  a  number  of  laAvyers  of  European 
reputation,  Westlake,  of  England;  T.  M.  C.  Asser,  of  Holland;  and  M. 
Rolin-Jaequemyns,  later  minister  of  justice  in  Belgium. 

2  Cf.  the  report  by  Benard,  at  the  July  meeting  of  the  Paris  "Societe 
d'economie  politique",  which  has  a  very  resigned  sound.  ("Journal 
des  Economistes  ",  3d  ser.,  VII,  p.  1161.) 

3  "Revue  generale  du  droit  etc.  en  France  et  a  l'etranger",  II,  p.  533. 
The  "Congres  international  du  commerce"  met  at  Brussels  in  1880  and 
discussed  the  Bremen  draft  regarding  the  law  of  freightage  (Thaller, 
in  "Annales  de  droit  commercial",  I,  1886,  p.  30).  I  have  been  unable 
to  learn  whether  other  matters  were  considered  at  this  meeting. 

354 


Chap.    X]  COMMERCIAL   LAW  [§  4 

the  method.1  On  the  other  hand,  there  are  a  number  of  subjects  in 
which  there  can  be  no  doubt  of  the  urgent  necessity  of  uniform  law, 
and  for  which  important  preliminary  work  has  already  been  accom- 
plished. Such  subjects  are :  the  law  of  railway  freights  ;  the  law 
of  negotiable  instruments ;  a  portion  of  maritime  law ;  and  the 
law  of  intellectual  property.  A  number  of  very  important  bodies 
have  also  expressed  themselves  in  favor  of  a  similar  limitation  of 
the  task.  These  are  the  International  Association  for  Reform  and 
Codification  of  International  Law;  the  Institute  of  International 
Law ;    and  the  Belgian  Government. 

The  Association  first  mentioned  was  originally  by  no  means  an 
organization  of  lawyers  only.  It  was  founded  by  a  clergyman  of 
Boston,  Dr.  James  B.  Miles,  who  believed  that  the  treaty  of  Wash- 
ington and  the  Geneva  arbitration  were  about  to  inaugurate  the 
era  of  perpetual  peace.  The  Association,  jointly  with  the  Peace 
League,  at  first  aimed  at  nothing  less  than  the  establishment  of 
compulsory  arbitration  and  the  codification  of  the  entire  inter- 
national law.  These  were  still  the  objects  pursued  at  the  first 
two  meetings  held,  those  at  Brussels  in  1873  and  at  Geneva  in  1874. 
However,  the  very  next  year  a  gratifying  change  of  opinion  was 
noticeable.  The  Association  decided  to  let  its  original  ideals  drop 
into  the  background,  in  favor  of  more  proximate  and  more  easily 
attainable  objects.  The  alliance  with  the  Peace  League  was 
severed.  Uniform  private  law,  more  particularly  certain  portions 
of  the  law  of  commerce,  negotiable  instruments,  intellectual 
property,  and  maritime  law,  were  included  in  the  field  of  serious 
discussion.  A  number  of  prominent  German  lawyers,  in  1876, 
founded  a  German  branch  association  at  Bremen.2 

The  Institute  of  International  Law  was  organized  in  the  same 
year,  at  the  same  place,  and  in  part  by  the  same  persons,  as  the 
Association  just  described.  However,  it  now  occupies  another,  and 
one  may  well  say  a  higher  position  than  the  latter.  While  the 
Association  is  open  to  all  persons  interested  in  international  law, 
the  Institute  is  rather  an  Academy  limited  to  a  small  number  of 

1  Cf.  Asser's  report  in  "  Annuaire  de  l'lnstitut  de  droit  international ", 
VI,  1883,  p.  77.  Lyon-Caen,  in  Clunet's  "Journal",  XII,  p.  593.  Also 
Thaller,  Inc.  cit.,  p.  32. 

2  On  the  history  of  this  Association,  cf.- Clunet's  "Journal  de  droit 
intern.",  I,  p.  253;  II,  p.  402;  III,  pp.  263',  418;  IV,  p.  574;  VI,  pp.  216 
et  seq.;  X,  p.  564;  "Revue  de  droit  intern.",  V,  pp.  616  et  seq.;  VII,  pp. 
307  et  seq.;  VIII,  p.  603  et  seq.;  IX,  pp.  405  et  seq.;  "American  Law  Re- 
view ",  1875,  IX,  pp.  185  et  seq.;  Goldschmidt,  in  "  Zeitschrift  fiir  das 
gesammte  Handelsrecht ",  XXIII,  p.  222.  Cf.  also  Asser,  in  "  Revue  de 
droit  intern.",  XII,  p.  6;  "Annuaire  de  l'lnstitut",  V,  pp.  200  et  seq. 
The  German  branch  association  has  been  dissolved. 

355 


§  .4]  PART  III      UNIFICATION   OF   LAW  [Chap.    X 

members  elected  by  co-optation,  and  consists  of  the  most  prom- 
inent scholars  in  international  law  in  both  hemispheres.  It  is  a 
corporation  with  the  avowed  purpose  of  guiding  the  development 
of  the  law  of  nations  and  of  becoming  the  keeper  of  the  juristic 
conscience  of  the  civilized  world.1 

The  Institute,  at  its  very  foundation,  resolved  to  establish  rules 
for  those  situations  commonly  (but  not  quite  accurately)  termed 
"  conflicts  of  laws  ",  i.e.  private  international  law.  These  rules 
were  to  solve  questions  of  the  territorial  validity  of  law,  —  for 
instance,  whether  in  certain  cases  it  may  not  be  the  duty  of  a 
German  court  to  apply,  not  German,  but  English,  Italian,  Spanish, 
or  Chinese  law,  as  the  case  may  be.  In  discussing  these  difficult 
problems,  commercial  law  was  touched  upon,  and  on  motion  of 
Asser,  a  Hollander,  and  Sacerdoti,  an  Italian,  the  following  resolu- 
tions were  adopted  at  the  Turin  meeting  : 

"  1.  The  most  thorough  and  efficient  means  of  eliminating  the 
conflict  of  laws  would  be  the  regulation  of  several  branches  of  com- 
mercial law  by  uniform  legislation. 

"2.  Uniformity  is  especially  desirable  as  regards  negotiable  and 
other  commercial  instruments,  bills  of  lading,  and  the  principal 
topics  of  maritime  law."  2 

Finally,  the  Belgian  Government  lent  its  support.  In  1885,  in 
preparation  for  the  World's  Fair  at  Antwerp,  several  members  of 
the  cabinet  petitioned  the  King  for  the  calling  of  an  international 
commercial  congress  to  be  held  at  Antwerp.  In  this  petition  the 
usefulness  of  a  uniform  law  of  commercial  intercourse  was  empha- 
sized, in  the  following  terms:  "  Commercial  relations  are  to-day 
principally  of  an  international  character.  They  are  becoming  so 
more  and  more,  and  what  new  flights  might  they  not  take,  if  they 
were  freed  from  the  fetters,  difficulties,  uncertainties,  and  expenses 
growing  out  of  differences  in  the  law?  "  It  was  added  that  such 
an  attempt  would  indeed  take  a  long  time  to  accomplish,  and  would 
have  to  be  carefuly  prepared ;  and  the  petitioners  continue : 
"  For  the  present,  uniformity  might  be  attained  without  serious 
difficulties  in  several  parts  of  commercial  law."  The  Belgian 
ministers  also  designated  as  subjects  thus  ready  for  unification, 
negotiable  instruments,  bills  of  lading,  and  maritime  law.3  On 
the   King  of  the  Belgians  assenting  to  this  proposal,  an  official 

1  "  Revue  de  droit  intern.",  V,  pp.  667  et  seq.,  683  et  seq. 

2  <"/".  "Annuaire  de  l'lnstitut  de  droit  intern.",  VI,  pp.  76,  92;  VII,  p. 
22. 

3  The  "Rapport  au  Roi"  and  "Arrete  royal"  of  Feb.  27,  1885,  are 
printed  in  CluneVs  "  Journ.  de  droit  intern.",  XV,  pp.  124  et  seq. 

356 


Chap.    X]  COMMERCIAL   LAW  [§  5 

committee  of  organization  was  appointed.  On  September  27,  1885, 
delegates  of  fifteen  governments,  seventeen  law  faculties,  nine 
bar  associations,  numerous  chambers  of  commerce,  commercial 
courts,  mercantile  associations,  banking  and  insurance  institutions, 
associations  of  lawyers  and  legal  periodicals,  met  at  Antwerp. 
The  governments  of  Germany,  England,  and  Austria  were  unfor- 
tunately unrepresented,  but  on  the  other  hand  delegates  came  even 
from  America  and  Asia.  In  accordance  with  a  resolution  of  the 
committee  on  organization,  the  Congress  excluded  the  law  of 
transportation  and  limited  its  labors  to  a  consideration  of  negoti- 
able instruments  and  maritime  law.  Even  these  two  subjects  the 
Congress  (which  was  in  session  but  one  week)  could  not  complete, 
notwithstanding  the  great  zeal  and  successful  work  of  its  members. 
At  the  unanimous  request  of  the  Congress,  the  Belgian  Govern- 
ment authorized  the  re-assembling  of  the  delegates.1  For  extrinsic 
reasons,  the  meeting  had  to  be  postponed  again  the  following  year, 
but  was  called  to  assemble  at  Brussels  in  1S87. 

We  may  now  turn  back,  and  trace  more  in  detail  the  results  of 
these  endeavors  to  create  a  uniform  law  of  commercial  intercourse 
in  the  most  important  parts  of  the  field.  We  confine  our  survey 
to  the  three  great  subjects  of  Railway  Freights,  Negotiable  Instru- 
ments, and  Maritime  Law  of  General  Average. 

§  5.  (II.)  The  Law  of  Railway  Freights.  —  The  merit  of  being  the 
first  to  suggest  uniform  legislation  for  railroad  freights  belongs  to 
two  Swiss  barristers,  G.  de  Seigneux,  of  Geneva,  and  H.  Christ,  of 
Basel.  These  two  lawyers,  in  1874,  offered  in  the  Swiss  Federal 
Assembly,  which  was  then  discussing  a  bill  to  regulate  railroad 
freights  in  the  Confederation,  a  resolution  asking  for  an  inter- 
national agreement  upon  at  least  four  fundamental  issues  in  the 
law  of  railway  freights.2  The  occasion  for  this  motion  was  the 
fact  that  during  the  war  of  1870  the  transportation  of  goods  on 
Swiss  railroads  had  increased  materially  and  had  led  to  a  large 
amount  of  litigation.  The  resolution  was  referred  to  the  Federal 
Council,  which  took  the  matter  up  with  the  officials  at  Vienna,  Paris, 
Berlin,  and  Rome,  and  found  everywhere  a  favorable  reception. 

1  Reports  on  the  Congress  are  given  by  Lyon-Caen,  loc.  cit.,  XII,  pp. 
593-645;  Lewis  and  Speiser  in  "Zeitschrift  fur  Handelsrecht",  Vol.  32, 
pp.  87-132 ;  Barclay,  in  "Law  Quarterly  Review ",  1886,  January  number  ; 
and  Daguin,  in  "Bulletin  de  la  Soeiete  de  legislation  comparee,"  1886,  pp. 
570-653.     Further  literature,  see  note  67  and  Daguin^ Zoc.  cit.,  p.  61,  n.  2. 

2  The  petition  is  printed  in  Eger,  "Die  Einfiihrung  eines  internationalen 
Eisenbahnfrachtrechts  ",  p.  44.  —  Cf.  also,  de  Seigneux,  "  Rapport  du  projet 
de  convention  internationale  presente  au  eongres  international  pour  le 
developpement  et  l'amelioration  des  moyens  de  transport,  tenu  a  Paris 
le  22  J.  1878  ",  page  9. 

357 


§  5]  PART   III      UNIFICATION   OF   LAW  [Chap.    X 

The  Austrian  and  German  governments,  however,  requested  more 
detailed  propositions.  In  accordance  with  this  request,  the  Fed- 
eral Council  caused  to  be  drafted  a  convention  containing  thirty- 
eight  sections.1  This  draft  was  rather  a  torso  of  a  bill  regulating 
freights,  than  an  actual  code  covering  the  whole  subject.  Sub- 
stantially, it  was  based  on  the  Swiss  federal  railway  transportation 
bill,  which  in  the  meantime  had  become  a  law.  The  draft,  accom- 
panied by  a  report,  was  communicated  not  only  to  the  four  govern- 
ments originally  addressed,  but  to  all  countries  which  had  direct 
railway  connection  with  Switzerland,  —  in  other  words,  to  all  coun- 
tries of  the  European  continent  except  Greece,  Turkey,  Sweden, 
and  Norway. 

Before  the  various  governments'  representatives  had  assembled 
to  discuss  the  subject,  the  voices  of  legal  scholars  made  themselves 
heard.  Professors  of  commercial  and  international  law,  as  well  as 
practical  railroad  officials,  were  ready  to  appreciate  the  initiative 
taken  by  the  Swiss ;  among  those  expressing  their  views  were 
Laband,2  Sachs,3  von  der  Leyen,4  Asser,5  Hovy,6  Riviere,7  von 
Bulmerincq,8  Ebermann 9  and  Eger.10  They  were  all  agreed 
regarding  the  need  of  uniformity.  It  was  indeed  intolerable  that 
when  e.g.  a  parcel  of  goods  was  forwarded  from  Heidelberg  to 
Lyons,  passing  through  regions  in  which  three  different  systems  of 
law  were  in  force,  the  French  railway  authorities  might  become  liable 
for  a  claim  for  which  there  was  no  recourse  to  the  Swiss  or  the 
German  railways.11  In  addition,  there  was  a  chaotic  mass  of 
unsolved  problems  regarding  the  duty  of  the  carrier  to  accept 
freight,  the  right  of  disposal  by  the  consignor,  recourse  against  prior 
parties,  liens,  the  statute  of  limitations,  and  many  other  rules.12 
Hovy,  a  Netherlands  barrister,  cited  a  case  arising  in  his  own  prac- 
tice, in  which  a  merchant  of  Amsterdam  had  consigned  to  France 

1  Printed  with  the  "Motiven",  by  Eger,  loc  cit.,  pp.  21-44.  The  draft 
was  prepared  by  Prof.  Fiek,  de  Seigneux,  and  Christ.  —  Cf.  von  der  Leyen, 
in  "Zeitschrift  fiir  Handelsrecht ",  Vol.  25,  pp.  241  et  seq. 

2  "Zeitschrift  fiir  das  gesammte  Handelsrecht  ",  Vol.  22,  pp.  590  et  seq. 

3  Loc.  cit.,  XX,  p.  660.  *  Loc.  cit.,  XXIII,  p.  612. 

6  "Revue  de  droit  intern.",  X,  pp.  101  et  seq. 
8  Loc.  cit.,  IX,  pp.  380  et  seq. 

7  Loc.  cit.,  VII,  143  et  seq. 

8  Loc.  cit.,  X,  pp.  83  et  seq. 

9  "Juristisehe  Blatter",  May,  1878. 

10  Eger,  "Die  Einfiihrung  eines  internationalon  Eisenbahnfrachtrechts  "  ; 
Thaller,  p.  31,  would  have  preferred  the  conference  to  make  rules  for  deci- 
sion of  cases  of  so-called  conflicts  of  laws  only. 

11  Cf.  the  petition  and  memorandum  of  de  Seigneux  and  Christ,  Eger,  loc. 
cit.,  pp.  7,  50. 

12  Cf.  "Zeitung  des  Vereins  deutscher  Eisenbahnverwaltungen  ",  1878, 
Nr.  48,  June  24;  see  also  G.  de  Seigneux,  "Rapport  ",  1878,  pp.  4  and  5. 

358 


Chap.    X]  COMMERCIAL   LAW  [§  6 

a  car-load  of  coffee,  which  was  destroyed  by  fire  during  the  Paris 
Commune.  He  had  to  deal  with  no  less  than  five  railways,  either 
as  original  defendants,  or  defendants  brought  in  by  the  others. 
Each  of  these  had  its  own  solicitor  and  its  own  barrister,  and  each 
pleaded  different  defenses,  in  part  based  on  different  railway 
laws.  What  complications  in  a  law-suit  very  simple  in  itself  ! 
What  an  enormous  burden  of  costs  for  the  defeated  party  ! * 

And  as  all  were  in  accord  as  to  the  need  of  common  regulation, 
so  were  they  as  to  its  feasibility.  For  notwithstanding  the  great 
diversity  of  freight  regulations  in  detail,  they  could  be  reduced,  in 
all  essentials,  to  two  types,  and  even  these  have  a  common  basis. 
This  basis  is  found  in  the  provisions  of  the  French  Code  of  Com- 
merce regarding  the  ordinary  contract  of  freight  transportation. 
The  French  rules  have  been  adopted  practically  unchanged  by 
Belgium  and  Holland.  The  German  Commercial  Code,  on  the 
other  hand,  as  well  as  the  railway  traffic  regulations  of  May  11, 
1874,  based  thereon,  has  introduced  considerable  deviation  from 
the  French  law,  and  at  any  rate  has  the  formal  advantage  of  much 
greater  comprehensiveness.  This  is  not  surprising,  for  the  French 
Code  was  adopted  before  the  advent  of  railways.  It  required  the 
decision  of  a  court  to  establish  that  the  rules  regarding  common 
carriers  of  freight  were  applicable  to  railways.  Moreover,  many 
topics  were  left  unprovided  for,  and  were  covered  by  the  freight 
regulations  of  the  various  railway  companies  themselves,  which 
did  not  by  any  means  tend  to  improve  the  certainty  of  the  law. 
The  entire  German  Commercial  Code  and  traffic  regulations  were 
in  force  also  in  Austria-Hungary,  and  by  convention  the  traffic 
regulations  had  been  adopted  for  the  inter-railway  business  of  more 
than  one  hundred  and  twenty  railways  in  Germany,  Austria- 
Hungary,  Belgium,  Holland,  and  Russia.  The  Swiss  railway  law 
of  1875  occupied  a  middle  ground  between  the  original  French  and 
the  derivative  German  law ;  and  the  same  was  true  of  the  Swiss 
international  draft  based  on  it.2 

§  6.  The  Berne  Draft  Convention.  —  On  May  13,  1878,  an  inter- 
national freight  law  conference  met  at  Berne.  Nine  continental 
countries  were  represented  :  Austria-Hungary,  Germany,  France, 
Russia,  Italy,  Belgium,  Luxemburg,  the  Netherlands,  and  Switzer- 

1  Cf.  Hnvj/,  in  "Revue  de  droit  intern.",  loc.  cit.  Further  eases  in 
Asser,jr., "  Internationaalgoederenvervoerlangsspoorwegen.  DeBernsche 
conventie  van  1886",  pp.  3,  12,  16. 

2  Eger,  pp.  51,  53  ;  Laband,  pp.  591,  592  ;  v.  Bulmerincq,"  Volkerrecht ", 
p.  277.  On  the  condition  of  French  law,  cf.  Thaller,  loc.  cit.,  p.  32  ;  Lyon- 
Caen  and  Renault,  "Precis  de  droit  commun",  I,  pp.  461,  n.  2,  and  pp.  495 
et  seq. 

359 


§  6]  PART   III      UNIFICATION    OF   LAW  [Chap.    X 

land.1  The  two  men  who  four  years  earlier  had  first  suggested 
international  uniformity,  de  Seigneux  and  Christ,  were  accorded 
the  well-merited  honor  of  being  elected  secretaries.  In  addition 
to  the  Swiss  draft,  the  Conference  had  before  it  an  alternative  draft 
prepared  by  the  German  commissioners,  Gerstner,  von  der  Leyen, 
Meyer,  and  Rutz ;  this  was  limited  to  foreign  freight  traffic,  but 
attempted  to  cover  this  field  completely,  and  was  based  substan- 
tially on  German  law.2  This  draft  found  the  greater  number  of 
adherents,  and  many  of  its  provisions  were  adopted.  In  the  short 
time  of  three  weeks,  the  Conference  drew  up  a  new  draft,  containing 
fifty-six  sections,  besides  some  administrative  regulations,  which 
covered  not  only  the  entire  substantive  law  of  freights  but  also 
a  number  of  very  important  matters  of  procedure.3  This  first 
Conference  draft  was  in  general  well  received  by  public  opinion, 
yet  there  was  no  lack  of  proposed  amendments  by  several  govern- 
ments, congresses,  associations,  and  authors.4 

To  consider  these  suggestions,  a  second  conference  took  place 
in  the  autumn  of  1881 ;  and  after  an  interval  of  five  years,  in  July, 
1886,  a  third  one  was  held,  both  again  at  Berne.  On  July  17,  1886, 
the  revised  draft  was  agreed  upon  and  signed  by  all  the  delegates 
except  those  of  the  German  Empire ;  but  these  also  added  their 
signatures  in  November,  1886. 

The  Berne  Conferences  did  not  limit  themselves,  however,  to 
drawing  up  a  comprehensive  proposition  for  the  law  of  freights  and 
the  conduct  of  litigation  arising  therefrom.  In  addition,  a  sug- 
gestion of  the  German  commissioners  was  adopted  and  a  set  of 
administrative  regulations  was  drawn  up,  recommending  the  estab- 
lishment of  a  central  bureau  at  Berne.  This  bureau  was  to  facili- 
tate financial  interchanges  between  the  treaty  States,  to  act  as 
clearing  house  for  information,  to  publish  information  of  interna- 
tional importance  for  transportation,  to  undertake  the  task  of 
ascertaining  whether  the  international  rules  adopted  were  ade- 
quate to  the  demands  of  traffic,  and  also  in  proper  cases  to  make 

1  For  the  names  of  the  delegates  and  the  attitude  of  the  various  govern- 
ments, cf.  de  Seigneux,  "Rapport",  pp.  11-14;  von  der  Leyen,  in  "  Zeit- 
schrift  fur  Handelsrecht",  Vol.  25,  pp.  242  et  seq. 

2  Cf.  Goldschmidt,  in  his  magazine,  Vol.  34,  p.  628. 

3  Printed  in  de  Seigneux,  "Rapport",  pp.  34  et  seq.  Also  Nr.  53  of  "  Zei- 
tung  des  Verbands  deutscher  Eisenbahnverwaltungen,"  July  12,  1878. 
On  the  discussions  at  the  meeting,  cf.  same  paper,  Nr.  48,  June  24 ;  also 
von  der  Leyen,  loc.  cit. 

4  Cf.  Meili,  "Internationale  Eisenbahnvertrage",  p.  35;  von  der  Leyen, 
loc.  cit.,  pp.  246  et  seq.;  "  Annales  du  droit  commercial",  I,  pp.  31  et  seq; 
Asser  jr.,  loc.  cit.,  p.  30;  von  Bidmerincq,  loc.  cit.,  p.  277.  More  references 
given  in  Meili,  loc.  cit.,  p.  34;  Thaller,  loc.  cit.,  and  also  "Archiv  fiir 
offentliches  Recht",  III,  pp.  384  et  seq.,  notes  19-22,  29,  46. 

360 


Chap.   X]  COMMERCIAL   LAW  [§  6 

suggestions  to  the  treaty  governments  and  call  for  a  new  conference. 
These  were  to  be  held  at  least  once  in  three  years.  Besides  thus 
taking  the  initiative  regarding  new  legislation,  the  Bureau  was  to 
act  as  arbitrator  in  disputes  between  the  various  railways.  On  the 
other  hand,  the  Conference  rejected  the  proposal  to  establish  an 
international  court  for  that  purpose.1 

However,  this  draft,  although  it  was  approved  by  the  repre- 
sentatives of  five  great  powers  and  four  other  states  of  continental 
Europe,  did  not  immediately  become  law ;  it  failed  to  receive  the 
parliamentary  approval  required  by  the  constitution  of  several  of 
these  States,  and  therefore  was  not  ratified  and  published  by  the 
governments.2  .  .  . 

An  eminent  commercial  jurist  of  France,  Professor  Thaller  of 
Lyons,3  in  1886,  saw  fit  not  only  to  make  a  number  of  criticisms  on 
the  merits  of  the  draft,  but  also  to  express  a  sort  of  personal  griev- 
ance because  (as  he  opined)  in  the  Berne  draft  the  German  law 
had  vanquished  the  French  law.  Nevertheless,  he  was  obliged  to 
concede  that,  so  far  as  the  regulation  of  freight  traffic  is  concerned, 
German  commercial  law  is  superior  to  the  French.  Moreover, 
Germany  also  had  agreed  to  certain  compromises  and  had  made 
some  sacrifices,  such  as  are  demanded  as  a  matter  of  course  from 
each  party  to  the  work  of  unification.4  Even  Thaller,  however, 
was  not  a  declared  opponent  of  the  draft.  At  the  close  of  his 
article,  he  protested  that  he  would  regret  having  written  it  if  it 
should  seem  to  be  inspired  by  national  animosity  against  the  work 
of  the  Conference,  and  should  effect  a  postponement  of  its  suc- 
cessful accomplishment.  Thaller  even  goes  so  far  as  to  concede 
that  he  would  welcome  the  results  of  the  Berne  conferences,  if  only 
they  be  not  considered  as  a  precedent  for  afterwards  permitting 
the  entire  commercial  law  of  Europe  to  be  attracted  into  the  Ger- 
man orbit. 

Under  the  Berne  Convention  of  1886,  international  uniformity 
would  be  achieved  for  foreign  traffic  only,  and  even  this  only  where 
goods  are  transported  from  one  treaty  State  to  another  by  a  through 
bill  of  lading  on  a  railway  subject  to  the  convention.  All  domestic 
traffic  would  remain  under  existing  national  law.5     If,  however,  the 

1  Cf.  Meili,  loc.  cit.,  p.  57.     Also  Eger,  "Einfiihrung",  p.  132. 

2  [The  present  status  of  the  Railway  Freight  Bureau  is  described  in  Mr. 
Reinsch's  chapter,  post,  p.  432.  —  Ed.] 

3  Cf.  Thaller  in  "  Annales  de  droit  commercial",  I,  pp.  32,  318  (1886) ; 
see  also  Asser,  jr.,  loc.  cit.,  p.  31.  4  Meili,  loc.  cit.,  p.  48,  n.  2 ;   p.  58. 

5  Even  the  motion  to  extend  the  agreement  to  at  least  one  important 
point  of  domestic  traffic  was  defeated.  See  Eger,  "  Archiv",  III,  n.  2,  pp. 
36,  37. 

361 


§  6]  PART   III      UNIFICATION   OF   LAW  [Chap.    X 

rules  of  the  convention  proved  their  merits  in  foreign  traffic,  the 
time  would  probably  come  when  the  several  countries  would  them- 
selves abolish  the  dualism  of  law  and  adopt  for  domestic  business 
also  the  rules  in  force  for  foreign  traffic.  That  such  a  hope  is  not 
inspired  by  unjustifiable  optimism  is  indicated  by  the  circumstance 
(noted  in  the  discussion  by  von  der  Leyen,  one  of  the  German  dele- 
gates) that  during  the  interval  between  the  second  and  third 
conferences,  two  of  the  proposed  treaty  governments,  Russia  and 
Italy,  did  in  fact  adopt  certain  principles  of  the  Berne  draft  as 
their  domestic  law,  and  partly  in  the  very  words  of  the  draft.1 

§7.  (ill.)  The  Law  of  Negotiable  Instruments  ;  Early  History. — 
The  call  for  a  law  of  negotiable  instruments  uniform  throughout 
the  world  was  heard  a  hundred  years  before  there  was  a  demand  for 
uniform  transportation  laws. 

Bills  of  exchange  were  invented  to  fill  the  need  for  obtaining 
money  in  foreign  places,  and  were'  freely  used  instead  of  money  to 
effect  payments  between  residents  of  different  cities  and  countries, 
especially  after  their  assignability  had  been  legally  established  in 
the  latter  half  of  the  1600  s.  Thus  a  bill  of  exchange  is  a  true 
cosmopolite.  It  wanders  over  sea  and  land,  often  passing  through 
many  different  nations,  and,  when  dishonored  (a  fate  not  as  rare  as 
it  should  be),  compelled  to  travel  back  again  through  all  these 
countries  to  its  place  of  origin.  But  in  the  course  of  these  travels 
it  is  subject  to  all  sorts  of  different  laws  and  usages  in  these  several 
jurisdictions.  The  fundamental  principles  of  all  laws  affecting  it 
are  indeed  similar,  on  account  of  their  historical  derivation  and  the 
frequent  borrowing  of  laws;  yet  there  is  much  contrariety  in 
important  details.  These  legal  rules  are  like  children  who  have  an 
unmistakable  family  likeness  and  yet  each  an  individual  physi- 
ognomy :  "  Facies  non  omnibus  una,  nee  di versa  tamen,  qualem 
decet  esse  sororum."  2  Obviously,  it  has  always  been  important 
to  know  these  various  laws,  and  highly  desirable  to  establish  a 
uniform  law  regarding  bills  and  notes. 

The  first  step  in  that  direction  was  a  comparative  study,  and  an 
attempt  to  comprehend  diversities  and  similarities.  As  far  back 
as  1709,  a  merchant  of  Nuremberg,  Paul  Jacob  Marperger,  under- 
took the  task  of  compiling  "a  fair  harmony  of  the  many  European 
laws  of  negotiable  instruments."  3     Not  much  later,  in  1721,  as  a 

1  Von  der  Leyen,  in  "Zeitsehrift  fur  Handelsreeht",  Vol.  34,  p.  302. 

2  This  verse  {Ovid,  "Metamorphoses",  II,  13-14)  has  been  cited,  quite 
properly,  for  a  number  of  other  institutions  of  commercial  law,  e.g.  for 
maritime  law  (Dufour,  "Droit  Maritime",  I,  p.  90.)' 

3  Marperger,  "  Neueroff netes  Handelsgericht",  p.  501. 

362 


Chap.   X]  COMMERCIAL  LAW  [§  7 

consequence  of  the  bursting  of  John  Law's  stock-jobbing  bubble  in 
France  and  England,  a  serious  financial  crisis  arose  in  Germany. 
Many  law  suits  were  lost  on  account  of  ignorance  regarding 
foreign  laws  governing  bills  of  exchange  ;  and  this  suggested  a  more 
thorough  study  of  the  subject.1  Probably  the  first  to  express  the 
idea  that  these  laws  in  the  various  countries  might  be  mutually 
assimilated  was  a  Frenchman,  Accarias  de  Serionne,  author  of 
books  on  "  The  Wealth  of  Holland  "  and  "  The  Advantages  derived 
by  Nations  from  Commerce."  In  the  latter  work,  which  appeared 
in  1766  both  in  French  and  German,  the  author  exclaims :  "It 
would  surely  be  desirable  that  the  form  and  use  of  negotiable  instru- 
ments be  governed  by  a  general  law,  uniform  among  all  commercial 
nations",  and  "  that  the  terms  of  endorsements  could  not  be  con- 
strued away  in  any  court  in  Europe,  and  that  both  protest  and  the 
omission  of  protest  should  have  the  same  effect  in  all  countries."  2 
This  wish  was  reiterated,  apparently  without  knowing  the  work 
of  Serionne,  by  a  number  of  German  professors  of  law  during  the 
next  few  decades.     The  need  was  manifestly  felt  more  and  more. 

However,  until  the  middle  of  the  1800  s,  there  was  very  little 
hope  of  realizing  this  idea.  The  jurists,  Moshammer,  Weisseneck, 
and  Daniels,  in  referring  to  the  subject,  differ  from  each  other  only 
in  the  degree  of  their  resigned  pessimism.  Even  as  late  as  the  year 
1842,  Mittermaier  wrote :  "  We  shall  not  entertain  any  hope 
that  the  time  may  be  near  when  all  civilized  countries  will  agree 
upon  a  uniform  negotiable  instruments  law  "  ;  and  yet  he  was  so 
profoundly  convinced  of  the  necessity  of  unification  that  a  few 
paragraphs  earlier  he  exclaimed :  "  Bills  of  exchange,  like  com- 
merce, belong  to  the  whole  world.  Without  their  uniform  regu- 
lation, there  can  be  no  assured  stability  for  commerce." 

The  resigned  attitude  of  these  authors  concerning  a  reform  the 
utility  of  which  they  depicted  so  vividly  is  easily  explained  by  the 
circumstances  of  the  time  in  which  they  wrote.  It  would  have 
been  fanciful  to  believe  in  a  unification  of  all  nations  as  long  as  in 
Germany  itself  there  were  still  nearly  twice  as  many  negotiable 
instruments  laws  as  there  were  federal  States ;  fifty-nine  different 
statutes  were  in  force  in  that  country,  of  which  nine  dated  from  the 
1600  s,  thirty-one  from  the  1700  s,  and  but  nineteen  from  the 
1800  s;  while  the  number  of  German  statutes  dealing  with  the 

1  Cf.  my  contributions  to  a  uniform  law  of  negotiable  instruments  in 
"Festgabe  fur  Bluntschli ",  1880,  p.  3;  Raumburger,  "Justitia  selecta", 
pp.  14  et  seq.,  and  preface,  pp.  5-8,  11. 

2  Cohn,  loc.  cit.,  p.  11,  n.  52,  p.  139.  On  Schrottenfels'  plan  of  an  im- 
perial law  of  negotiable  instruments,  in  1715,  see  loc.  cit.,  p.  11. 

363 


§  7]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

subject  was  itself  greater  than  the  number  of  different  systems  of 
law  in  all  countries  outside  of  Germany  taken  together.  Doubt 
had  been  expressed  regarding  the  possibility  of  obtaining  uni- 
formity even  of  German  laws  regarding  negotiable  papers.  How 
then  dared  anybody  hope  to  unify  all  at  once  nearly  a  hundred 
greatly  differing  systems,  such  as  existed  in  Europe  at  the  begin- 
ning of  the  century  ! 

§  8.  Attempts  at  Uniformity.  —  Conditions  changed,  when  the 
general  German  Act  regarding  negotiable  instruments  was  adopted 
in  1847.  Its  passage  was  not  merely  counted  as  a  national  achieve- 
ment, it  also  became  the  starting  point  of  international  hopes  and 
aspirations.  This  it  was  that  confirmed  Leone  Levi  in  his  belief 
regarding  the  feasibility  of  his  own  more  ambitious  proposals 
related  above.  If  it  had  been  possible  to  secure  a  common  law  for 
more  than  thirty  sovereign  German  federal  States,  some  of  which 
were,  in  general  respects,  under  French,  some  under  Roman,  some 
under  Prussian  law,  why  (he  asked)  should  not  this  precedent  be 
followed  by  a  larger  number  of  governments?  In  France,  Suin 
(as  we  saw  above)  answered  that  question  in  the  affirmative.  At 
the  Ghent  meeting  of  the  International  Association  for  the  Promo- 
tion of  Social  Science,  in  1864,  the  subject  was  submitted  for  dis- 
cussion.1 In  February,  1867,  the  English  statesman,  Goschen,2 
came  out  in  favor  of  uniformity  in  negotiable  instruments  law, 
as  did  also  the  president  of  the  French  Council  of  State,  E.  de 
Parieu,  the  protagonist  of  uniformity  in  coinage. 

Parieu  was  well  aware  of  the  difficulties  of  the  task.  He  enu- 
merated fifteen  points  of  difference  between  French  and  German 
law  regarding  negotiable  instruments ;  but  they  appeared  to  him 
numerous  rather  than  formidable.  He  realized  fully  that  the 
French  would  have  to  consent  to  some  modifications  of  their  own 
law,  but  he  was  not  afraid  of  borrowing  some  rules  from  foreign 
law  in  this  branch  of  commercial  law.  He  did  not  talk  about  the 
"  orbite  du  droit  germanique."  Although  he  realized  the  actual 
state  of  affairs,  he  expressed  a  hope  that  "  nous  ou  nos  enfants  " 
might  live  to  see  this  great  idea  an  accomplished  fact.  He  even 
ventured  this  remarkable  practical  suggestion,  that  Germany, 
France,  and  England  might  first  come  to  an  agreement  on  some  of 
the  principal  points ;  if  that  were  done,  they  would  constitute 
"  le  triumvirat  beni  de  la  civilisation  europeenne." 

1  The  deliberation,  however,  led  to  no  result.  Cf.  S.  van  Nierop,  in  an 
opinion  submitted  to  the  Dutch  Lawyers'  Association. 

2  "Journal  des  Economistes  ",  XI,  p.  217. 

364 


CHAP.    XJ  COMMERCIAL    LAW  [§  8 

In  order  to  promote  his  ideas,  Parieu  put  himself  in  touch  with 
eminent  jurists,  including  the  most  prominent  teacher  of  commer- 
cial law  in  Germany,  Goldschmidt.1  He  also  promoted  discussion 
in  France,  where  especially  Charles  Le  Touze  received  these  pro- 
posals with  an  enthusiasm  not  entirely  equaled  by  his  knowledge 
of  the  subject.2  About  the  same  time,  some  zeal  in  the  same  direc- 
tion showed  itself  in  Italy.  In  that  country,  Minghetti,  a  member 
of  the  Cabinet,  in  October,  1869,  laid  before  a  convention  of  Cham- 
bers of  Commerce  the  question  whether  it  would  not  be  useful  and 
proper  if  the  government  should  take  the  first  step  towards  negoti- 
ating with  foreign  governments  regarding  the  adoption  of  a  uni- 
form negotiable  instruments  law.  The  answer  was  an  enthusiastic 
affirmation.  Whether  the  Italian  government  ever  followed  up 
the  resolutions  passed  by  the  convention,  does  not  appear.  At  any 
rate,  all  such  plans  were  pushed  into  the  background  for  a  while 
by  that  great  historical  event,  the  Franco-German  war  of  1870. 

Yet  this  very  year  of  war,  1870,  was  destined  to  become  a  land- 
mark for  all  tendencies  towards  international  uniformity  of  law. 
We  have  already  described  how  the  war  rendered  impossible  the 
use  of  many  railway  lines,  compelled  traffic  in  many  cases  to  take  a 
roundabout  way  through  Switzerland,  and  caused  the  numerous 
complicated  law-suits  which  led  to  the  proposal  of  the  two  Swiss 
barristers.  So,  too,  for  negotiable  instruments,  the  war  furnished 
proof,  if  any  were  still  needed,  of  the  intolerable  consequences 
caused  by  the  diversities  of  law  in  the  various  European  countries. 
The  French  government  felt  obliged  to  defer  the  day  of  payment 
of  negotiable  papers  repeatedly,  ostensibly  for  the  purpose  of  aid- 
ing the  suffering  French  industries,  but  in  reality  to  give  ample 
time  to  insolvent  French  debtors.  Instead,  however,  of  making  an 
express  declaration  to  that  effect,  the  Act  of  August  13,  1870, 
establishing  a  moratorium,  and  subsequent  decrees,  merely  ex- 
tended, repeatedly  and  for  a  long  period,  the  time  within  which 
protests  of  bills  of  exchange  might  be  made.  By  these  regulations, 
which  were  intended  to  produce  effects  not  expressed  in  the  text,  a 
great  deal  of  litigation  was  occasioned  between  makers,  endorsers, 
and  holders  seeking  recourse.  In  the  course  of  such  litigation, 
considerable  differences  appeared  in  the  views  of  courts  in  different 
countries,  not  only  regarding  the  interpretation  of  the  moratorium 
provisions,  but  also  regarding  the  effect  of  acts  of  God  or  of  the 

1  Cf.  Pappenheim,  "Die  Uniformiriing  des  Wechselreckts",  in  "Zeit- 
schrift  fiir  Handelsrecht ",  Vol.  28,  p.  512,  n.  2. 

2  Cohn,  loc.  cit.,  pp.  17,  18. 

365 


§  8]  PART   III      UNIFICATION    OF   LAW  [Chap.    X 

public  enemy  ("  force  majeure  ")  on  the  duty  of  presentation  and 
protest.  These  differences  produced  intolerable  results ;  e.g.  a 
prior  holder  of  an  unpaid  bill  on  Paris  was,  in  France  and  Italy,  at 
the  suit  of  the  holder,  adjudged  liable,  while,  when  this  same  prior 
holder  tried  to  obtain  recourse  against  his  own  prior  endorsers  in 
Germany  and  Switzerland,  his  action  was  dismissed. 

Such  a  state  of  things  could  not  but  offend  most  profoundly  the 
general  sense  of  justice.  Almost  simultaneously,  the  first  Scan- 
dinavian Congress  of  Advocates,  meeting  at  Copenhagen  in  August, 
1872,  and  the  tenth  German  Congress,  meeting  at  Frankfort-on- 
the-Main,  declared  in  favor  of  eliminating  this  diversity  of  law. 
The  last-named  body,  after  thorough  discussion  in  a  section  meet- 
ing, where  the  feeling  was  "  almost  unanimous  ",  adopted,  in  general 
session,  by  an  overwhelming  majority,  and  amidst  hearty  applause, 
the  following  resolution :  "  The  adoption  of  a  uniform  law  of 
negotiable  instruments  for  all  European  countries  and  the  United 
States  of  America  is  in  accord  with  modern  conditions  of  legal 
science  and  is  demanded  by  the  interests  of  international  commerce 
and  credit."  The  first  Hungarian  Congress  of  Advocates,  as  far 
back  as  1870,  had  pronounced  in  favor  of  uniform  principles  for  all 
commercial  and  credif,  laws  throughout  Europe. 

In  the  year  1873,  the  subject  was  being  discussed  in  England 
also.  The  law  section  of  the  National  Association  for  the  Promo- 
tion of  Social  Science  (founded  by  Lord  Brougham  in  1856),  after 
prolonged  debate,  expressed  the  opinion  that  precisely  in  the  matter 
of  negotiable  instruments  it  would  be  not  only  desirable  but  also 
feasible  without  much  difficulty  to  bring  about  a  mutual  assimila- 
tion of  law  betweeen  the  various  countries.  In  1880,  the  Dutch 
Congress  of  Advocates  likewise  expressed  similar  views. 

§  9.  The  Bremen  and  Antwerp  Drafts.  — ■  However  significant 
all  these  aspirations  might  be  as  evidence  of  a  need  felt  in  many 
countries,  and  as  testimonials  for  the  practicability  of  the  idea  of 
uniformity,  they  all  were  deficient  in  one  respect.  While  declaring 
that  a  grievance  existed  and  that  it  could  be  relieved,  they  made 
not  even  an  attempt  at  such  relief.  To  supply  what  was  wanting, 
and  to  attempt  relief  by  proposing  a  definite  plan,  was  the  task  of 
the  three  organizations  already  mentioned  in  §  4  above. 

The  Association  for  Reform  and  Codification  of  International 
Law  deserves  the  first  place  in  this  regard.  Just  as  soon  as  this 
body  had  loosened  its  close  relations  to  the  Peace  League  and  sub- 
stituted for  wordy  resolutions  in  favor  of  impossible  ideals  serious 
work  for  promoting  the  unification  of  law,  it  appointed  a  committee 

366 


Chap.    X]  COMMERCIAL   LAW  [§  9 

to  inquire  into  the  principal  points  of  difference  between  the  various 
types  of  negotiable  instruments  law.  The  members  of  the  com- 
mittee, with  few  exceptions,  were  men  distinguished  as  authors  in 
this  field,  and  represented  all  the  great  powers  of  Europe  (except 
Russia),  as  well  as  Scandinavia,  Belgium,  Holland,  and  the  United 
States.  At  three  meetings,  during  the  years  from  1876  to  1878, 
held  at  Bremen,  Antwerp,  and  Frankfort-on-the-Main,  twenty- 
seven  principal  provisions  of  an  international  negotiable  instru- 
ments law  were  adopted.1  These  provisions  are  commonly  known 
as  the  Bremen  Rules.  For  the  most  part,  they  conform  to  the 
German  and  Austrian  law ; 2  the  principal  draftsmen  were  Bor- 
chardt,  a  German,  and  Jaques,  an  Austrian,  two  men  who  had 
already  done  much  good  work  in  this  field  and  shown  great  activity 
at  the  meetings  of  the  German  Barristers'  Congress.  The  French 
remained  in  the  background  at  the  Bremen  and  Frankfort  meetings, 
probably  for  political  reasons ;  but  fortunately  they  were  a  little 
more  strongly  represented  at  Antwerp.  Public  opinion  gave  the 
Bremen  Rules  a  very  cordial  reception.  The  German  government 
even  undertook  to  promote  them,  and  entered  upon  the  initial  steps 
with  foreign  governments.3  The  three  Scandinavian  countries 
based  their  new  legislation  essentially  on  these  rules ;  Italy,  Hol- 
land, and  Russia  also  gave  them  careful  consideration  in  formulat- 
ing their  national  codes.4  In  France,  where  the  existing  law  was 
most  divergent  from  the  rules  adopted,  a  certain  reserve  was  no- 
ticeable. It  was  said  that  all  the  work  of  the  Association  "  lacked 
analytical  spirit ",  as  well  as  "  the  genius  for  codification  which 
inspires  the  French  jurists."  5 

The  Institute  of  International  Law  turned  its  attention  to  the 
subject  a  little  later  than  the  Association.  At  the  Turin  session, 
September  12,  1882,  it  was  decided  that  uniformity  in  negotiable 
instruments  law  was  particularly  desirable.  Thereupon  lively 
differences  arose  whether  to  take  up  merely  the  so-called  conflicts 
of  laws,  or  the  whole  subject  of  negotiable  instruments.  The  latter 
opinion  prevailed.  The  Institute,  however,  then  went  even  be- 
yond the  Association  by  drawing  up,  not  merely  the  leading  prin- 

1  Printed  in  Pappenheim,  loc.  cit.,  pp.  537-542. 

2  The  few  deviations  are  shown  in  Pappenheim,  loc.  cit.,  pp.  514,  515. 

3  Annual  report  of  the  German  Branch  Association,  Bremen,  April 
27,  1878;  v.  Martens,  "  Volkerrecht  ",  I,  p.  210;  van  Raalte,  "Uniform- 
wisselrecht  ",  in  Pappenheim,  loc.  cit.,  p.  516,  n.  4. 

4  Cf.  Riesser,  in  "Zeitschrift  fur  vergleichende  Rechtswissenschaf  t  ", 
VII,  pp.  24,  44 ;  my  own  paper  on  the  draft  of  a  Russian  law,  loc.  cit.,  IV, 
pp.  6,  14. 

6  For  details,  see  Cohn,  loc.  cit.,  pp.  46  et  seq.;  also  Pappenheim,  loc.  cit., 
p.  516,  n.  4. 

367 


§  9]  PART   III      UNIFICATION   OF  LAW  [Chap.    X 

ciples,  but  a  complete  code  for  all  civilized  States,  and  not  only 
for  foreign  but  also  for  domestic  bills  and  notes.  The  excellent 
draft  was  the  work  of  Cesare  Norsa,  an  attorney  of  Milan,  who 
followed  essentially  the  German  law  and  the  Bremen  Rules.  The 
draft  was  adopted,  with  comparatively  slight  amendments,  at  the 
Brussels  session,  on  September  8  and  9,  1885.  Norsa  at  the  same 
time  proposed  uniform  rules  regarding  bank  checks  and  similar 
instruments,  but  discussion  was  postponed.  The  draft  of  the 
Institute  contained  one  hundred  and  six  sections,  and  ten  addi- 
tional provisions  regarding  the  so-called  conflict  of  laws.1 

At  the  Congress  of  Antwerp,  in  1885,  called  by  the  King  of  the 
Belgians,  a  second  draft  of  fifty-seven  sections,  dealing  with  negoti- 
able instruments  including  checks,  was  submitted,  in  addition  to 
the  draft  of  the  Institute.  This  new  draft  was  substantially 
founded  on  the  Belgian  law,  and  claimed  to  be  a  model  which 
would  appeal  to  each  government  by  its  intrinsic  excellence.  This 
expectation,  however,  seems  to  have  been  disappointed,  notwith- 
standing the  draft  was  subsequently  amended  in  several  respects. 
For  the  Congress  itself  did  not  consider  its  work  quite  finished,  and, 
as  some  of  the  resolutions  had  to  be  adopted  in  a  hurry,  asked 
time  for  further  consideration.  Moreover,  with  regard  to  an 
important  question  relating  to  the  so-called  "  provision  " 2  the 
Congress,  after  warm  debates,  adopted  not  one  but  two  incon- 
sistent provisions,  as  alternatives.3  Notwithstanding  all  this, 
Speiser,  the  delegate  from  Switzerland,  was  right  in  declaring, 
with  some  reservations,  that  the  Antwerp  discussions  had  much 
improved  the  outlook  for  unification,  because  the  mere  fact  that 
representatives  of  so  many  countries,  not  one  of  which  rejected  the 
principle  of  uniformity,  had  exchanged  views,  must  have  a  favor- 
able influence.  This  is  all  the  more  so  because  many  Frenchmen 
took  an  active  part.  How  great  the  enthusiasm  for  uniformity 
was  at  Antwerp  is  most  strikingly  evidenced  in  the  state- 
ment made  by  the  Belgian  minister  of  justice,  Pirmez,  who  presided 

1  The  draft  is  printed  in  the  "Annuaire  de  l'lnstitut ",  VIII,  pp.  97- 
123;  cf.  also,  loc.  tit.,  II,  p.  36;  VI,  pp.  78,  79,  91 ;  VII,  pp.  13,53-190; 
VIII,  pp.  79-131.     Cf.  Riesser,  loc.  tit.,  pp.  47  et  seq. 

2  This  requirement  of  a  "provision"  (German  =  "Deckung")  imposes 
upon  the  drawer  the  duty  to  provide  the  drawee  with  funds  for  the  pay- 
ment of  the  bill.  These  funds  belong,  in  legal  contemplation,  to  the  holder 
of  the  instrument,  who  will  be  entitled  thereto  in  the  event  of  the  drawee's 
insolvency. 

3  Cf.  Speiser,  in  "Zeitschrift  fur  Handelsrecht ",  Vol.  32,  pp.  119,  124; 
Riesser,  loc.  tit.,  pp.  29,  30  ;  Rivier,  in  report  on  the  Heidelberg  meeting  of 
the  Institute,  in  "Revue  de  droit  intern.",  Vol.  19,  p.  336;  Thaller,  in  his 
"Annales  ",  Vol.  1,  pp.  340,  341;  Cesare  Norsa,  in  "Rassegna  di  diritto 
commerciale",  IV,  pp.  1-119;    Dove  Wilson,  ibid.,  pp.  145-161. 

368 


Chap.   X]  COMMERCIAL   LAW  [§  10 

over  the  negotiable  instruments  section.  At  the  solemn  closing 
session,  he  said  that  he  should  consider  the  adoption  of  a  uniform 
negotiable  instruments  law  a  piece  of  good  fortune  even  if  the 
selection  was  made  by  lot  among  any  of  the  recently  adopted 
European  codes.1 

§  10.  Difficulties  in  the  Way  of  Uniformity.  —  The  mere  his- 
tory of  the  movement  for  uniformity,  as  here  set  forth,  is  sufficient 
to  prove  its  justification.  The  extremely  few  dissenting  voices  are 
lost  amidst  the  assenting  resolutions  of  the  German,  Dutch, 
Scandinavian,  and  Hungarian  Congresses  of  Advocates,  the  similar 
declarations  of  national  and  international  associations  and  conven- 
tions, the  expressions  of  eminent  and  most  careful  writers  in  legal 
and  economic  science,2  and  the  high  authority  of  the  Institute  of 
International  Law.  Even  the  dissenting  voices  do  not  deny  that 
uniformity  would  be  desirable ;  they  merely  doubt  its  practicabil- 
ity. Why  should  it  be  impracticable  ?  It  is  said  that  precedent  is 
lacking,  that  there  is  no  international  court  to  give  an  authorita- 
tive interpretation  of  an  international  code,  that  a  negotiable 
instruments  law,  like  all  other  statutes,  would  require  amendment 
from  time  to  time,  that  the  difference  of  languages,  the  divergence 
of  law  in  general,  and  the  national  exclusiveness  of  the  various 
peoples,  stand  in  the  way. 

Of  these  objections  that  relating  to  difference  in  language  would 
seem  most  easily  disposed  of.  Are  there  not  other  international 
conventions  ?  Have  not  trilingual  Switzerland  and  polyglot  Austria 
federal  or  imperial  statutes?  The  difficulties  arising  from  the 
absence  of  an  international  court,  which  might  indeed  imperil  to 
some  extent  the  permanence  of  uniformity,  should  likewise  not  be 
rated  highly  as  compared  to  the  value  of  uniformity  itself.  Would 
it  not  be  possible  to  overcome  differences  in  interpretation,  if  such 
should  arise,  by  international  agreement?  The  same  simple 
remedy  could  also  be  applied  to  any  needs  for  amendment,  if  such 
should  become  necessary. 

Even  the  precedent  asked  for  is  not  lacking.  For  agreements 
between  various  countries  regarding  matters  of  private  law,  we 
need  not  go  back  to  classical  antiquity,  nor  to  the  oriental  capitula- 
tions, nor  to  more  modern  commercial  treaties  and  conventions 
regarding  marriages  between  foreigners.  We  need  not  even  point 
out  that  stipulations  regarding  some  points  in  this  very  field  of 

1  Cf.  Lewis,  in  "Zeitschrift  fiir  Handelsrecht ",  Vol.  32,  p.  93. 

2  Cf.  e.g.,  Knies,  "Der  Kredit",  I,  pp.  169,  170;  also  Cohn,  loc.  cit.,  p. 
30,  n.  103,  and  p.  140. 

369 


§   10]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

negotiable  instruments  law  are  to  be  found  in  the  Franco-Turkish 
treaty  of  1740,  in  that  of  1783  between  Russia  and  Turkey,  and 
in  the  Austro-Persian  commercial  treaty  of  1857.  Sufficient  to 
refer  to  the  fact  that  Sweden,  Norway,  and  Denmark  have  each 
adopted  an  identical  negotiable  instruments  code  drawn  by  previ- 
ous diplomatic  agreements.1  And  if  one  were  to  minimize  the 
significance  of  this  by  pointing  out  the  close  racial  affinity  of  the 
three  Scandinavian  countries,  we  may  point  to  the  International 
Postal  Union,  which  contains  at  least  a  few  provisions  of  private 
law,  dealing  with  the  liability  of  postal  departments  towards  the 
public  and  the  rights  of  the  sender.2  There  is  also  the  International 
Copyright  Union,  founded  on  September  9,  18S6,  which  contains  a 
number  of  private  law  provisions  for  all  member  countries,  although 
each  country  retains,  in  general,  its  own  laws  and  is  merely  obli- 
gated to  let  citizens  of  the  other  member  States  participate  in  their 
protection  on  an  equal  footing.3  Then  there  is  also  a  union  for 
trade-mark  protection,  composed  of  seventeen  countries,  organized 
June  6,  1884,4  and  containing  similar  limitations ;  and  further, 
the  final  protocol  of  the  Berne  freight  law  convention,  described 
already,  and  signed  by  nine  European  governments.  For  the 
rest,  the  lack  of  precedent  should  never  be  made  a  pretext  to  pre- 
vent the  progress  of  legislation. 

The  diversity  of  general  private  laws  likewise  ought  not  to  be 
regarded  as  an  obstacle  to  a  uniform  negotiable  instruments  law, 
provided  we  keep  strictly  within  the  limits  of  the  subject  and  leave 
everything  outside  of  that  to  the  regulation  of  our  individual  legisla- 
tures. It  was  precisely  this  prudent  restraint  that  enabled  Ger- 
many in  1847  to  accomplish  her  unification  of  negotiable  instru- 
ments law  in  such  a  manner  that  the  new  provisions  were  easily 
fitted  into  the  diverse  systems  of  general  private  law  of  the  federal 
States. 

1  Cf.  "  Zeitschrif t  f ur  vergleichende  Rechtswissenschaft  ",  IV,  pp.  6,  7. 

2  Unfortunately  there  is  a  clause  that  these  provisions  shall  be  of  no 
effect  if  the  local  legislation  is  inconsistent  therewith  ;  yet  the  fact  remains 
that  common  rules  were  proposed  and  in  several  countries  put  into  effect. 
It  is  a  pity  that  the  convention  relating  to  the  telegraph  excludes  all  liability. 
On  the  postal  conventions  in  general,  see  v.  Bulmerincq,  loc.  cit.,  pp.  273  et 
seq. ;  v.  Martens,  "Volkerrecht ",  pp.  258,  262;  v.  Kirchenheim,  in  "Revue 
de  droit  international",  VII,  pp.  455  et  seq.;  XIII,  pp.  85etseq.;  XIV,  p. 
616 ;  XVIII,  pp.  92  et  seq.  In  the  place  last  cited,  he  also  deals  with  the 
international  law  of  telephones. 

3  E.g.,  §§  6,  7,  9,  10;  11,  p.  2.  On  the  Union  in  general,  see  Orelli,  in 
"  Revue  de  droit  intern.",  XVIII,  pp.  33  et  seq.;  "Zeit-  und  Streitfragen  ", 
newser.,  nos.  1,  2  ;  Numa  Droz,  in  CluneVs  "Journal  ",  1884,  pp.  44  et  seq. ; 
1885,  pp.  55  et  seq.,  163  et  seq.;  481  et  seq.;  see  the  text,  on  Clunet's 
"Journal  ",  1887,  pp.  780  et  seq.  and  "U.  S.  Library  of  Congress,  Copyright 
Office  Bulletin."  4  E.g.,  §  8. 

370 


Chap.   X]  COMMERCIAL   LAW  [§11 

§  11.  Further  Obstacles  Considered. — ■  Thus,  of  all  the  objec- 
tions made  against  uniformity  nothing  remains  but  the  so-called 
"  exclusiveness  "  of  the  several  nations.  This  unfortunately  does 
exist  as  a  feeling  of  national  superiority  in  the  field  of  legislation  no 
less  than  elsewhere.  This  feeling  produces  patriotic  qualms  at  the 
mere  idea  of  giving  up  traditional  notions  of  what  should  be  the 
law,  and  fears  lest  thereby  the  superiority  of  foreign  legislators  be 
admitted.  This  exclusiveness  ("  notre  exclusivisme  reel  ou 
pretendu  ",  as  Parieu  has  it)  is  found  by  no  means  in  France  only, 
where,  to  be  sure,  the  fear  of  being  "  carried  away  into  the  orbit 
of  Germanic  law  "  is  rather  strongly  developed,  and  where  one 
often  hears  the  conviction  asserted  that  there  is  a  special  "  genie 
de  la  codification  qui  inspire  les  legistes  francais  ",  or  a  "suprematie 
morale,  si  honorable  pour  nos  legislateurs."  In  England  and  Ger- 
many also  we  sometimes  meet  with  similar  views.  "  Peccatur 
intra  et  extra."  Thus,  in  1873,  E.  E.  Kay,  Q.  C,  seriously  advised 
his  countrymen,  to  draw  up,  in  place  of  an  international  code,  a 
purely  English  one ;  and  this,  he  asserted,  would  be  so  superior  to 
every  other  that  it  could  be  adopted  as  a  whole  by  the  entire  world.1 
Again,  at  Antwerp,  as  reported  by  his  own  compatriot,  Sir  Thomas 
Barclay,  an  Englishmen,  imagined  that  he  had  given  the  best  of 
reasons  for  voting  in  the  negative  by  calling  attention  to  the  fact 
that  a  proposed  clause  differed  from  English  law.2  Nobody  in 
Germany  has  gone  quite  as  far  as  that ;  yet  even  there  an  eminent 
jurist,  in  1872,  expressed  himself  as  follows :  "  We  might  just  as 
well  wait  until  the  foreigners  have  become  convinced ;  foreigners 
will  have  to  come  to  the  conclusion  in  a  number  of  respects  that 
our  negotiable  instruments  law  is  the  better." 

Quite  true ;  it  is  better  in  some  respects ;  but  where  shall  the 
line  be  drawn  ?  It  is  better  in  "  some  "  respects,  but  by  no  means 
in  all.  In  "  some  "  respects  Germany  also  could  well  learn  from 
abroad.  Did  not  the  German  Advocates  Congress  prefer  the 
English  system  of  recourse  after  refusal  to  accept,  instead  of  the 
German  rule?  And  is  not  the  Belgian  and  Italian  "  private  ad- 
mission "  in  many  cases  to  be  preferred  to  the  cumbersome  and 
expensive  German  protest?  The  German  law  can  also  afford  to 
adopt  the  English  type  of  paper  payable  to  bearer ;  to  abolish  the 
distinction  between  endorsement  before  and  after  maturity  (as  in 
France,  Scandinavia,  and  Finland) ;  and  to  get  rid  of  the  ineffective 
requirement  of  notice.     And  so  with  many  other  things. 

1  Cohn,  loc.  cit.,  p.  36,  n.  115. 

2  Barclay,  in  "Law  Qu.  Rev. ",  loc.  cit. 

371 


§  11]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

Moreover,  are  there  not  in  law,  as  elsewhere,  subjects  of  sub- 
ordinate importance,  which  do  not  depend  on  national  individuality 
nor  are  matters  of  principle,  and  therefore  may  be  regulated  more 
or  less  arbitrarily,  —  as  for  instance  the  periods  provided  by  the 
statute  of  limitations  ?  If  one  should  defer  unification  of  the  law 
until  all  other  nations  had  become  convinced  that  our  own  provisions 
are  better  than  theirs  in  matters  of  such  trifling  import,  that  would 
mean  adjournment  "  ad  Kalendas  Graecas."  The  words  spoken 
by  Reuling,  at  the  Fourteenth  German  Advocates'  Congress,  in 
1872,  express  the  correct  attitude :  "  The  establishment  of  a  com- 
mon international  law  regarding  negotiable  instruments  is  surely  an 
absolute  necessity,  to  which  we  ought  to  be  ready  to  sacrifice  much 
in  our  own  which  may  be  sound  in  itself.  For  the  great  need  of 
uniformity  is  superior  to  such  matters  of  detail."  In  the  same 
spirit  was  the  reply  given  at  the  Antwerp  Congress  to  the  English- 
man of  whom  we  spoke  above  :  "  You  Englishmen,"  a  French  dele- 
gate called  out  excitedly,  "  seem  to  think  it  a  fine  thing  if  you 
permit  us  graciously  to  adopt  your  laws  as  they  stand ;  but  we 
came  here  to  make  compromises  in  the  interest  of  harmony.  If 
we  were  to  make  reservations  whenever  our  laws  differed,  the  only 
result  of  this  Congress  would  be  an  agreement  on  things  on  which 
we  are  already  agreed,  and  we  should  reserve  all  those  very  points 
for  the  settlement  of  which  we  have  assembled  here." 

§  12.  Existing  Types  of  Law.  —  What  then  are  these  supposed 
radical  differences  of  detail  ?  Leaving  out  of  account  a  few  isolated 
systems,  we  may  distinguish  on  the  whole  three  types  of  negotiable 
instruments  law :  The  French,  the  Anglo-American,  and  the 
German. 

The  Anglo-American  type  differs  from  the  German  in  a  number 
of  respects,  especially  by  allowing  some  play  to  the  principle  of 
"  reasonableness  "  in  variation  as  to  periods  of  time  and  the  neces- 
sity for  certain  formalities,  where  the  German  law  requires  strict 
compliance  with  the  statute.1  Yet  there  are  many  similarities 
common  to  the  German  and  the  Anglo-American  types,  as  com- 
pared with  the  French  law.  This  is  especially  true  regarding  the 
fundamental  nature  of  a  negotiable  instrument,  whence  follow  a 
number  of  consequences. 

The  French  Commercial  Code,  together  with  the  numerous  codes 
derived  from  it  in  both  hemispheres,  has  remained  in  a  stage  of 

1  Cf.  Pappenheim,  loc.  tit,  pp.  535  et  seq.  My  former  opinion  to  the  con- 
trary I  have  changed  (Cohn,  loc.  cit.,  p.  38).  Cf.  also  Riesser,  loc.  tit.,  p. 
26,  n.  6. 

372 


Chap.    X]  COMMERCIAL   LAW  [§  12 

development,  as  to  the  fundamental  conception  of  negotiable 
paper,  which  is  now  several  centuries  behind  the  times.  It  con- 
ceives such  an  instrument  as  nothing  more  than  evidence  of  the 
assignment  of  a  sum  of  money  to  be  paid  by  the  assignor  to  the 
assignee  in  some  other  place.  Consequently,  this  Code  prohibits 
the  drawing  of  a  bill  payable  at  the  place  of  drawing ;  requires  the 
statement,  in  the  body  of  the  instrument,  of  the  nature  of  the  con- 
sideration paid  to  the  assignor ;  provides  a  strict  form  for  further 
assignments,  so  that  (in  particular)  the  mere  writing  of  the  name 
on  the  back  ("bianco-giro",  endorsement  in  blank)  is  not  sufficient. 
At  one  period  all  this  was  the  law  also  in  England  and  Germany. 
British  mercantile  practice,  however,  as  well  as  the  German 
negotiable  instruments  Code,  have  boldly  eliminated  what  proved 
so  restrictive  to  commerce  ;  and  German  legal  theory  worked  out 
a  conception  of  negotiable  instruments,  adapted  to  changed  condi- 
tions and  the  requirements  of  business.  When  there  came  to  be 
no  more  difficulties  growing  out  of  the  need  for  transportation  of 
money  and  the  diversity  of  coins,  and  when  bills  of  exchange  had 
been  transformed  from  a  device  for  transporting  money  from  place 
to  place  into  a  circulating  and  credit  medium  similar  to  money, 
there  was  no  further  reason  for  basing  negotiability  on  a  contract 
not  contained  in  the  paper  itself.  The  instrument  itself  became 
the  important  thing;  the  writing,  without  regard  to  any  prior 
transaction,  determined  the  character  of  the  paper  as  regards 
validity  and  assignability.  Consequently,  in  Germany  and  Eng- 
land, bills  may  be  drawn  on  the  place  of  drawing  as  well  as  on  other 
localities ;  the  mere  writing  of  the  name  on  the  back  serves  as 
assignment ;  there  is  no  need  for  a  statement  of  the  kind  of  con- 
sideration received  by  drawer  or  assignor ;  simply  because  he  has 
written  his  name,  a  drawer  or  endorser  is  liable  to  every  holder  in 
good  faith. 

The  difference  in  the  systems,  therefore,  is  not  in  reality  due  to 
inherent  differences  of  national  peculiarities,  but  merely  to  the 
progress  of  time.  A  compromise,  however,  between  the  concep- 
tions of  a  by-gone  age  and  of  modern  times  is  impossible.  Prin- 
ciple is  here  opposed  to  principle.  In  regard  to  this  fundamental 
matter,  therefore,  unification  cannot  be  accomplished  by  mutual 
concessions,  but  only  by  one  side  giving  way  altogether.  The 
question  is :  Which  principle  shall  be  abandoned,  the  older  or  the 
more  modern  one  ? 

Not  only  intrinsic  reasons  but  many  external  indications  also 
would  seem  to  forecast  the  victory  of  the  more  modern  conception. 

373 


§  12]  PART  III      UNIFICATION   OF  LAW  [Chap.   X 

The  French  theory  is  obviously  on  the  decline.  While  originally 
the  French  law  spread  widely  among  the  nations  of  Europe,  yet  since 
the  adoption  of  the  German  negotiable  instruments  law,  more  and 
more  nations  have  abandoned  the  antiquated  principles  of  the 
French  Code  de  Commerce.  That  Code  has  disappeared  from 
Western  Germany  as  well  as  from  those  Austrian  Crown  Lands 
which  had  adopted  it.  Belgium  !  and  Italy,  somewhat  later, 
abandoned  the  French  law,  from  which  theirs  had  been  derived, 
and  deliberately  joined  the  German  group.  Finland,  Switzerland, 
Norway,  Sweden,  Denmark,  and  Hungary  have  modeled  their  own 
law  upon  that  of  Germany.  The  new  Spanish  Commercial  Code  of 
1885  has  at  least  authorized  domestic  bills  and  endorsements  in 
blank  ;  though,  to  be  sure,  it  has  adhered  only  too  faithfully  to  the 
French  system  in  other  respects.2  We  have  already  stated  that  the 
Bremen  Rules  and  the  draft  of  the  Institute  follow  the  German  idea. 
The  Congress  at  Antwerp  in  1885  also  accepted  the  most  important 
consequences  of  the  modern  theory  of  negotiable  paper. 

Still  more  significant  is  the  fact  that  in  France  itself  a  large 
number  of  eminent  jurists,  including  Lyon-Caen,  have  raised  their 
voices  against  the  narrow  and  antiquated  provisions  of  the  Code 
de  Commerce.  There  also  the  opinion  is  gaining  ground  which 
was  strikingly  expressed  by  Pappenheim  :  France  is  asked  to  make 
sacrifices  in  the  interest  of  France. 

However,  while  Germans  and  British  are  jointly  opposed  to  the 
French  in  the  cardinal  question  of  the  nature  of  negotiable  paper, 
in  regard  to  another  important  point  the  French  and  British  are 
opposed  to  the  Germanic  group.  This  is  the  question  of  the  so- 
called  "  Wechselklausel."  By  this  is  meant  the  insertion  of  a 
clause  in  the  instrument  itself  by  which  it  is  designated  as  a  bill  or 
note.  This  is  required  by  the  entire  Germanic  group  (including 
Hungary,  Servia,  Finland,  Scandinavia,  Switzerland,  and  Italy),  as 
well  as  by  Russia.  Other  countries,  even  Belgium,  as  well  as  the 
Antwerp  draft,  dispense  with  this  requirement.  Cannot  the  Ger- 
man system  concede  something  to  the  French  and  English  in  this 
regard?  This  question  likewise  has  nothing  to  do  with  national 
individuality.  The  clause  has  been  opposed  in  Germany  also, 
and  at  the  time  of  the  adoption  of  the  Code  was  the  subject  of 
debate.     Yet   there   are   strong   reasons   why    Germany   cannot 

1  Cf.  Cohn,  loc.  cit,  p.  41,  n.  127;  in  the  same  sense,  Pappenheim,  loc. 
cit.;  contrd,  Sachs. 

2  Riesser,  loc.  cit.,  pp.  27,  28. 

374 


Chap.   X]  COMMERCIAL  LAW  [§  12a 

abandon  her  point  of  view  in  this  matter.  The  clause  is  not  only 
a  warning  for  inexperienced  persons,  a  sort  of  alarm  signal  for 
naive  makers  of  notes ;  but  it  is  also  the  only  definite  characteristic 
by  which  bills  and  notes  may  be  distinguished  from  other  papers 
such  as  orders,  letters  of  credit,  checks,  and  the  like.  These,  al- 
though similar  in  appearance,  carry  with  them  rights  and  duties 
very  different  from  bills  of  exchange  and  promissory  notes.  It 
would  seem  that  in  the  interest  of  the  debtor  as  well  as  of  the  credi- 
tor, of  commerce,  of  the  courts,  and  of  the  certainty  of  the  law, 
the  "  Wechselklausel  "  is  indispensable.1 

Space  does  not  here  permit  a  discussion  of  other  differences 
between  the  three  groups.  They  are  of  minor  importance  as 
compared  to  those  we  have  mentioned.  Even  the  requirement  of  a 
"  covering  fund  "  2  (which  was  thrown  into  the  Antwerp  Congress 
like  an  apple  of  discord)  is  not  likely  to  be  formidable,  if  we  agree 
to  leave  it  out  of  the  international  code.  Just  as  the  Germans, 
notwithstanding  the  diversity  once  so  marked  in  their  private  law, 
were  able  to  get  along  satisfactorily  without  it,  so  too  this  will  be 
possible  with  an  international  code  containing  no  such  require- 
ment and  not  even  an  alternative  rule  on  the  subject.3 

§  12a.  The  Congresses  of  1910  and  1912.4  —  The  movement  for 
the  unification  of  the  law  of  bills  and  notes  was  not  taken  up  again 
until  1906,5  when  the  Corporation  of  the  Deans  of  Merchants  of 
Berlin  ("  Die  Aeltesten  der  Kaufmannschaft  ")  asked  Felix  Meyer, 
judge  of  the  Royal  Prussian  Court  of  Appeals  of  Berlin,  to  make  a 
study  of  the  laws  of  bills  and  notes  of  the  world,  and  to  prepare  a 
draft  Code.  Dr.  Meyer  acquitted  himself  of  the  task  in  such 
a  masterly  manner  that  his  work  on  Comparative  Bills  of  Exchange 
Law  ("  Weltwechselrecht  ")  and  his  draft  Code,  published  in  1909, 
became,  so  to  speak,  the  cornerstones  for  the  unification  of  the  law. 
Influential  in  this  revived  movement  was  also  the  International 
Law  Association,  which  adopted  twenty-seven  rules  for  the  uni- 
fication of  the  law  of  bills  of  exchange,  at  its  meeting  in  Budapest 

1  Cf.  Cohn,  loc.  cit.,  pp.  57-60. 

2  For  explanation  see  ante,  §  9,  note. 

3  Charles  de  Touze,  in  "Journal  des  Economistes",  XI,  pp.  207  et  seq.; 
Lyon-Caen,  in  Clunet's  "Journal",  p.  631. 

4  [This  section  has  been  prepared  by  Ernest  G.  Lorenzen,  professor  of 
law  in  Yale  University  and  a  member  of  the  Editorial  Committee  of  the 
present  Series.  —  Ed.] 

5  [In  the  meantime  the  Congress  of  Commercial  Law,  held  at  Brussels 
in  1888,  which  concerned  itself  mainly  with  maritime  law,  had  approved 
a  draft  Code  of  Commercial  Paper,  but  no  governmental  action  sanction- 
ing this  draft  had  ensued  (Congres  international  de  droit  commercial  de 
Bruxelles,  "Actes",  Brussels,  1889;    Clunet's  "Journal",  1888,  XV,  897).] 

375 


§  12a]  PART   III      UNIFICATION    OF   LAW  [Chap.    X 

(1908),  modified  to  some  extent  at  its  meeting  in  Paris  (1912) ;  and 
seven  rules  for  the  unification  of  the  law  of  checks,  at  its  meeting  in 
London  (1910). 

In  furtherance  of  the  same  movement,  the  German  government 
sounded  the  leading  countries  of  Europe  concerning  the  desirability 
of  holding  an  international  conference  at  the  Hague  for  the  unifica- 
tion of  the  law  of  negotiable  paper.  Finding  the  sentiment  favor- 
able, it  asked  Italy,  which  had  taken  a  special  interest  in  the  move- 
ment, to  join  it  in  suggesting  to  the  government  of  the  Netherlands 
the  calling  of  such  a  conference.  The  government  of  the  Nether- 
lands willingly  complied  with  the  suggestion,  and,  in  preparation 
for  the  Conference,  obtained  from  the  governments  invited,  in 
answer  to  a  questionnaire  which  it  had  sent  them,  an  expression  of 
their  attitude  concerning  the  principal  questions  that  would  come 
up  for  discussion.  The  Conference  met  at  the  Hague  in  June  and 
July,  1910,  and  was  attended  by  delegates  from  thirty-five  coun- 
tries. Aided  greatly  by  the  preliminary  work  of  the  Netherlands 
government  and  by  the  draft  of  Dr.  Meyer,  the  Conference 
succeeded  in  agreeing  upon  a  preliminary  draft  of  a  uniform  law 
relating  to  bills  and  notes,  which  it  submitted  to  the  govern- 
ments represented  at  the  Conference,  for  examination  and 
criticism. 

At  a  second  Conference,  held  at  the  Hague  in  June  and  July, 
1912,  in  which  thirty-nine  countries  participated,  the  preliminary 
draft  was  modified  in  various  respects,  so  as  to  embody,  as  far  as 
possible,  the  amendments  which  had  been  proposed  by  many  gov- 
ernments. The  result  was  a  convention  for  the  unification  of  the 
law  of  bills  and  notes.  At  this  Conference,  also,  resolutions  were 
adopted  concerning  a  uniform  law  of  checks,  which  are  to  be  con- 
sidered again  at  a  future  conference. 

At  the  very  beginning  of  the  Conference,  it  became  apparent 
that  whatever  progress  might  be  made  in  the  direction  of  uniformity, 
it  would  not  embrace  the  law  of  Great  Britain  and  of  the  United 
States.  The  delegates  from  these  countries  declared  that  their 
governments  were  not  in  a  position  to  become  parties  to  any  inter- 
national convention  concerning  bills  or  notes,  and  that  they  would 
take,  therefore,  only  an  unofficial  part  in  the  proceedings.  The 
first  British  delegate,  Sir  George  Buchanan,  made  the  suggestion 
that  the  Conference  should  not  attempt  to  prepare  a  uniform  law, 
but  should  content  itself  with  laying  down  certain  principles  that 
might  guide  the  different  countries  in  their  legislation  upon  the 
subject.     The  fruitlessness  of  such  an  effort  had  been  so  clearly 

376 


Chap.   X]  COMMERCIAL   LAW  [§  12a 

demonstrated,  however,  by  the  results  obtained  from  all  previous 
efforts  to  secure  international  uniformity,  that  the  Conference 
decided  upon  the  preparation  of  a  complete  code  which  should 
become  the  national  law  of  the  contracting  powers,  without  change, 
except  in  so  far  as  the  convention  itself  might  expressly  authorize  a 
departure  from  its  provisions. 

The  attitude  taken  by  the  governments  of  Great  Britain  and  the 
United  States  affected  vitally  the  nature  of  the  rules  adopted  at 
the  Conference.  Although  the  British  delegate,  Sir  George  Buch- 
anan, took  a  very  active  part  in  the  deliberations  of  the  Conference, 
yet  the  unofficial  character  of  his  utterances,  in  the  nature  of  things, 
deprived  the  Anglo-American  system  of  the  influence  to  which  it 
would  otherwise  have  been  entitled.  The  main  task  of  the  Con- 
ference consisted,  therefore,  in  bringing  about  an  agreement  be- 
tween the  French  and  the  German  systems.  As  the  French  law 
represented,  essentially,  an  earlier  and  antiquated  point  of  view 
in  the  history  of  bills  and  notes  (a  fact  which  the  French  delegates 
readily  conceded),  the  difficulties  in  the  way  of  reaching  an  agree- 
ment were  much  reduced  from  what  they  would  have  been  had  a 
compromise  between  the  two  leading  modern  systems,  the  German 
and  the  Anglo-American,  become  necessary.  Such  requirements 
as  the  "  distantia  loci  "  and  the  recital  of  the  nature  of  the  con- 
sideration received,  were  dropped  without  discussion,  and  the 
admissibility  of  the  endorsement  in  blank  was  permitted  without 
serious  objection. 

The  German  system,  as  the  newer  type  of  law,  naturally  had  a 
preponderating  influence  upon  the  deliberations  of  the  conference. 
Several  provisions  of  the  German  Bills  of  Exchange  Law,  however, 
were  themselves  timeworn  and  no  longer  in  harmony  with  the 
commercial  needs  of  the  present  day.  The  German  delegates 
themselves  recommended  certain  modifications  of  their  law,  only 
two  of  which  can  be  mentioned  here. 

One  of  these  related  to  the  effect  of  non-acceptance.  In  common 
with  the  other  continental  countries,  but  differing  from  the  Anglo- 
American  system,  German  law  did  not  recognize  dishonor  for  non- 
acceptance.  Failure  to  accept  on  the  part  of  the  drawee  would 
entitle  the  holder  of  the  instrument  only  to  security  (the  form  of 
which  varied  in  the  different  countries)  that  the  bill  would  be 
paid  at  maturity.  A  preference  was  expressed  by  the  German 
delegates  for  the  rule  of  the  Anglo-American  law,  which,  in  the 
event  of  non-acceptance,  gives  to  the  holder  an  immediate  right  of 
recourse.     This  rule  was  adopted  by  the  Conference. 

377 


§  12a]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

Another  modification  suggested  by  the  German  delegates  related 
to  the  duties  of  the  holder  of  a  bill  or  note.  According  to  German 
law  his  duties  are  absolute,  and  not  merely  those  of  reasonable 
diligence,  the  latter  being  the  rule  of  France,  England,  and  the 
United  States.  Personal  disabilities,  such  as  the  sudden  illness  of 
the  holder  or  of  the  notary,  will  not  extend  the  time  in  which  pre- 
sentment or  protest  must  be  made,  nor  will  even  an  act  of  God 
operate  to  extend  the  time  or  to  excuse  presentment  and  protest 
altogether.  In  the  Conference,  opinions  differed  widely  as  to 
whether  the  extreme  liberality  of  the  Anglo-American  law  should  be 
adopted.  The  conclusion  finally  reached  was  that  a  rule  half-way 
between  the  German  and  the  Anglo-American  would  best  recon- 
cile the  conflicting  interests  of  the  holder  and  those  of  the  parties 
to  be  charged.  By  the  terms  of  the  convention,  a  delay  or  an 
entire  omission  to  present  or  to  protest  a  bill  or  note  may  be  excused 
by  reason  of  an  insurmountable  obstacle  ("  force  majeure  "),  such 
as  war,  earthquake,  floods  and  the  like,  but  not  by  reason  of  im- 
pediments of  a  personal  nature. 

In  regard  to  most  points  on  which  the  laws  of  the  countries 
participating  in  the  Conference  conflicted,  concessions  were  readily 
made  and  agreements  reached ;  but  in  some  particulars  no  agree- 
ment was  possible.  Such  was  the  case,  for  example,  concerning  the 
requirement  of  the  German  law  that  a  bill  or  note  must  be  desig- 
nated as  such  ("  Wechselklausel  ").  This  requisite  found  greater 
favor  at  the  Conference  than  it  ever  received  before,  being  approved 
at  this  time  by  several  countries  belonging  to  the  French  group. 
Owing  to  the  opposition  of  the  French  and  Belgian  delegates, 
however,  who  could  see  in  the  requirement  only  a  needless,  arti- 
ficial cause  for  invalidity,  no  uniformity  could  be  obtained  in  the 
matter.  A  suggestion  made  by  Switzerland  was  finally  incor- 
porated in  the  convention,  which  leaves  each  country  free  to  pro- 
vide that  bills  and  notes  issued  within  its  territory  shall  be  valid 
without  such  designation  if  they  are  expressly  payable  "  to  order." 

Nor  could  an  understanding  be  reached  upon  the  subject  of  the 
"  provision  "  or  "  covering  fund."  According  to  French  law,  there 
rests  upon  the  drawer  a  duty  to  provide  the  drawee  with  funds 
which,  in  the  event  of  the  drawee's  insolvency,  belong  to  the  holder 
of  the  instrument.  The  difficulty  was  solved  after  the  manner 
adopted  by  the  German  Bills  of  Exchange  Act,  which  omits  the 
subject  altogether,  the  conclusion  reached  being  that  only  the 
formal  law  of  bills  of  exchange  should  find  a  place  in  an  Interna- 
tional Code. 

378 


Chap.  X]  COMMERCIAL  LAW  [§  12a 

A  number  of  other  reservations  had  to  be  made  in  favor  of  the 
individual  powers  in  order  to  secure  their  adherence  to  the  conven- 
tion. For  example,  as  a  concession  to  Russia,  Article  22  was 
agreed  to,  which  leaves  the  powers  free  to  accept  only  the  part  of 
the  convention  relating  to  bills  of  exchange,  to  the  exclusion  of  that 
relating  to  notes.  The  reservations  include  a  great  variety  of 
topics,  some  of  which  touch  the  general  law  applicable  to  bills  and 
notes  as  contrasted  with  the  formal  law,  others  relate  to  the  formal 
law  itself,  and  still  others,  to  the  law  of  procedure  and  the  conflict 
of  laws. 

The  following  are  some  of  the  Articles  of  the  convention  which 
differ  materially  from  English  and  American  law : 

Articles  1  and  2,  which  make  an  undated  bill  or  note  void ;  — 
Articles  1  and  10,  which  consider  a  bill  or  note  negotiable  though 
not  payable  "  to  order  "  if  it  be  designated  in  the  context  as  a 
bill  or  note  ;  — -  Article  15,  which  protects  a  holder  for  value  without 
notice  whenever  there  is  a  correct  chain  of  endorsements  running 
to  him,  even  if  one  or  more  of  the  endorsements  are  forged ;  — 
Article  22,  which  provides  that  bills  payable  after  sight  must  be 
presented  for  acceptance  within  six  months  of  their  date,  which 
period  may  be  either  shortened  or  lengthened  by  the  drawer  but 
may  be  shortened  only  by  the  endorser ;  —  Article  25,  which  allows 
partial  acceptance ;  —  Article  37,  which  provides  that  a  bill  of 
exchange  may  be  presented  for  payment  on  the  day  it  falls  due  or 
on  either  of  the  two  business  days  following  (Reservation  in  Article 
7) ;  —  Article  44,  which  gives  four  days  to  the  holder  within  which 
to  notify  his  endorser  or  the  drawer  of  the  dishonor  of  the  instru- 
ment, and  two  days  to  each  endorser  in  which  to  give  notice  to  his 
predecessor  in  title ;  —  Article  53,  which  provides  that  the  time 
for  presentment  or  protest  may  be  extended  on  account  of  some 
insurmountable  obstacle  (such  as  war,  earthquake,  floods,  etc.), 
but  not  by  reason  of  any  calamity  affecting  the  holder  or  person 
present  in  the  bill  (such  as  illness  or  sudden  death) ;  —  Articles  70 
and  79,  which  fix  certain  periods  within  wrhich  action  must  be 
brought  against  a  maker,  acceptor,  drawer,  or  endorser,  varying 
from  three  years  to  six  months. 

However  disappointing  the  convention  of  the  Hague  Confer- 
ences concerning  bills  and  notes  may  be  to  the  ardent  advocates  of 
the  international  unification  of  the  law,  by  reason  of  its  reservations 
and  the  refusal  of  the  English-speaking  countries  to  become  parties 
thereto,  it  constitutes,  nevertheless,  a  considerable  progress  over 
all  prior  efforts  in  the  direction  of  unifying  the  law.     It  is  not 

379 


§  12a]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

merely  a  model  law,  as  was  that  adopted  at  the  Brussels  Confer- 
ence in  1888,  which  leaves  each  country  free  to  legislate  upon  the 
subject  as  it  pleases.  The  parties  to  the  convention  of  the  Hague 
are  obligated  to  accept  it  as  their  municipal  law,  without  change 
except  in  so  far  as  the  convention  expressly  authorizes  a  departure. 
As  a  result  of  the  Hague  Conferences,  therefore,  the  law  of  bills 
and  notes  will  be  identical,  except  in  matters  in  which  there  are 
reservations,  in  the  territory  of  the  contracting  powers. 

The  work  remaining  to  be  done  before  the  unification  of  the  law 
of  negotiable  paper  is  complete,  will  include  the  following  tasks : 

1.  The  Unification  of  the  Law  of  Checks.  — The  obstacles  in  the 
way  of  the  unification  of  the  law  of  checks  are  even  greater  than 
those  met  with  in  the  law  of  bills  and  notes.  The  difficulties  arise 
mainly  from  the  fact  that  the  different  countries  are  not  agreed 
upon  what  a  check  is.  England  and  the  United  States  regard  it 
as  a  species  of  a  bill  of  exchange  which  is  drawn  on  a  banker  and 
payable  on  demand.  In  Continental  countries,  on  the  other  hand, 
it  has  taken  a  variety  of  forms.  Italy,  for  example,  allows  a  check 
to  be  drawn  on  any  merchant.  France  goes  even  beyond  this  and 
permits  it  to  be  drawn  on  non-merchants  as  well.  Moreover,  the 
law  of  checks  is  of  a  more  recent  origin  than  that  of  bills  and  notes, 
for  outside  of  England  and  the  United  States,  the  -check  has  come 
into  use  only  in  very  recent  times.  In  many  countries,  therefore, 
the  law  relating  to  checks  is  not  firmly  established.  In  consequence 
of  this  situation  the  International  Law  Association,  which  con- 
sidered the  subject  at  its  meetings  of  Budapest  (1908)  and  London 
(1910)  was  unable  to  reach  any  agreement  upon  some  of  the  most 
fundamental  questions  in  the  law  of  checks.  All  it  could  do  was 
to  recommend  a  few  rules,  seven  in  number,  for  adoption  by  all 
nations.  The  unification  of  the  law  of  checks  was  taken  up  also 
at  the  second  Hague  Conference;  but  no  attempt  was  made  to 
prepare  a  draft  for  a  convention.  Thirty-four  Articles,  however, 
covering  the  entire  subject,  were  adopted,  which  are  to  furnish  the 
basis  for  discussion  at  a  future  conference.  Aided  by  this  prelim- 
inary work  and  by  the  comments  and  criticisms  which  these 
Articles  will  call  forth,  it  is  hoped  that  the  next  conference  may 
find  it  possible  to  formulate  a  uniform  law  upon  the  subject. 

2.  The  Revision  of  the  Hague  Convention.  —  The  delegates  at  the 
last  Hague  Conference  were  well  aware  of  the  fact  that  their  work 
was  not  perfect,  and  that  the  convention  would  give  rise  to  doubt 
and  contradictory  interpretations.  With  a  view  of  correcting 
imperfections  and  of  eliminating  such  reservations  as  time  and 

380 


Chap.  X]  commercial  LAW  [§  12a 

experience  might  show  to  be  unnecessary,  the  convention  provides 
that  a  new  conference  shall  be  called  after  five  years  for  purposes 
of  revision.  It  was  recognized,  however,  that  the  best  way  to  insure 
a  uniform  interpretation  of  the  convention  was  by  the  creation  of 
an  international  tribunal  with  jurisdiction  in  the  matter  of  bills 
and  notes.  The  Conference  of  1912  expressed,  therefore,  the 
wish  that  the  governments  represented  at  the  Hague  might  con- 
sider the  feasibility  of  establishing  such  a  tribunal. 

3.  Adherence  to  the  Convention  by  Great  Britain  and  the  United 
States.  —  The  unification  of  the  law  of  bills  and  notes  will  not  be 
complete,  however  much  the  present  convention  be  perfected,  until 
Great  Britain  together  with  its  colonial  possessions  and  the  United 
States  can  be  persuaded  to  become  parties  thereto.  This  hope 
cannot  be  realized,  however,  in  the  near  future,  for  the  reasons  set 
forth  by  the  British  and  American  delegates  at  the  Conference. 
The  possible  advantages  to  be  gained  from  an  international 
unification  of  the  law  are  by  them  regarded  as  out  of  all  propor- 
tion to  the  sacrifice  and  inconvenience  which  the  adoption  of  a 
uniform  law  would  entail.  Quasi-uniformity  already  exists  on 
the  subject  of  bills  and  notes  in  English-speaking  countries  at  this 
moment ;  and  this  would  be  seriously  jeopardized  if  either  Great 
Britain,  its  colonial  possessions,  or  the  United  States  should  fail 
to  adopt  the  law  of  the  convention.  Moreover,  concessions  to  the 
continental  point  of  view  would  have  to  be  made  which  would 
change  the  established  Anglo-American  law  in  important  respects. 
A  special  Act  would  have  to  be  drawn  in  England  and  the  United 
States  covering  such  topics  as  value,  the  rights  of  parties  to  accom- 
modation paper,  and  other  matters  belonging  to  the  general  law, 
inasmuch  as  the  international  code  deals  only  with  the  formal  law 
of  bills  of  exchange.  Again,  the  uniform  law  would  have  a  form  of 
expression  to  which  the  Anglo-American  lawyers  are  not  accus- 
tomed and  which  might  give  rise,  therefore,  to  unforeseen  diffi- 
culties. In  view  of  the  above  considerations  and  the  traditional 
conservatism  of  Anglo-American  law,  it  will  be  impossible,  for  a 
long  time,  to  create,  in  those  circles  upon  whose  co-operation  the 
adoption  of  the  uniform  law  will  depend,  a  sufficiently  strong 
sentiment  in  favor  of  international  unification. 

The  Hague  convention  concerning  bills  and  notes  will  remain, 
nevertheless,  a  great  landmark  in  the  history  of  the  movement  for 
unification,  for  it  will  establish  uniformity  in  the  law  of  bills  and 
notes  in  all  important  countries  other  than  those  of  the  English 
tongue,  and  thereby  reduce  the  possibility  of  conflict  to  those  cases 

381 


§  12a]  PART    III      UNIFICATION    OF    LAW  [Chap.    X 

where  the  rules  of  the  Anglo-American  system  and  those  of  the 
convention  of  the  Hague  are  at  variance.1 

§  13.  (IV.)  The  Maritime  Law  of  General  Average. — The  third 
field  in  which  the  need  and  practicability  of  unification  of  the  law 
became  clearly  apparent  was  maritime  law.  Maritime  inter- 
course (as  Lewis  aptly  puts  it)  brings  together  the  inhabitants  of 
the  most  diverse  zones  and  the  citizens  of  the  most  various  countries 
in  even  greater  measure  than  commerce  on  land  and  makes  them 
share  in  the  same  relations.  The  maritime  customs  of  the  island 
of  Rhodes,  while  the  Roman  world-empire  lasted,  and  in  the 
Middle  Ages,  the  Consulado  del  Mar  and  the  Laws  of  Wisby,  were, 
directly  or  indirectly,  the  source  of  nearly  all  maritime  legal  sys- 
tems of  the  globe.  Are  not  to-day  likewise  the  various  institutions 
of  maritime  law  common  to  all  nations  having  maritime  trade,  no 
matter  how  great  the  diversity  of  legal  detail  may  be  ?  2  Accord- 
ingly, representatives  of  different  nations  have  raised  their  voices 
in  favor  of  uniformity  in  maritime  law  through  all  recent  decades. 
We  may  mention  Alfred  de  Courcy,  the  Frenchman  ;  the  celebrated 
American  codifier,  David  Dudley  Field  ;  and  the  expert  insurance 
adjuster  of  Liibeck,  Franck.3  Moreover,  the  Belgian  Ministry 
have  taken  up  this  matter  with  particular  zeal ;  they  even  went  so 
far  in  their  rather  enthusiastic  optimism  as  to  say  that  the  uni- 
form regulation  of  maritime  law  was  "  pour  ainsi  dire,  tout  pre- 
pare." However,  the  discussions  at  the  official  Congress  of  Ant- 
werp in  1885  (often  above  alluded  to)  proved  that  matters  had 
not  progressed  quite  to  that  point,  so  far  as  the  whole  broad  field 
of  maritime  law  is  concerned.  At  that  Congress,  sixty-seven 
questions  were  submitted  for   debate ;    but  notwithstanding  re- 

1  [For  the  materials  in  English  on  the  Conferences  of  1910  and  1912,  see 
the  following :  Charles  A.  Conant,  "A  Report  of  the  U.  S.  Delegate  to  the 
Hague  Conference  of  1910"  (Senate  Doc.  No.  768,  61st  Cong.,  3d  Sess.) ; 
Charles  A.  Conant,  "Report  of  the  U.  S.  Delegate  to  the  Hague  Conference 
of  1912"  (Senate  Doc.  No.  162,  63d  Cong.,  1st  Sess.) ;  Francis  M.  Burdick, 
"  International  Bills  of  Exchange"  ("Illinois  Law  Review",  1912,  VI,  421) ; 
Pal  umbo,  two  articles  in  "Diritto  Commerciale  ",  1913,  vol.  XXXII. 

A  complete  and  detailed  account  of  the  results  of  the  Hague  Con- 
ventions compared  with  American  law  will  be  found  in  Professor  Loren- 
zen's  article,  "The  Hague  Convention  of  1912  relating  to  Bills  of  Exchange 
and  Promissory  Notes  ("Illinois  Law  Review",  1916,  XI,  pp.  137, 
225).  —  Ed.] 

2  Lewis,  in  "Endemann's  Handbuch",  IV,  pp.  5,  6;  cf.  also  Pardessus, 
"Lois  maritimes  ",  I,  pp.  2,  and  Putnam,  in  "Rassegna  di  diritto  com- 
merciale", II,  pp.  261  et  seq. 

3  Cf.  Siebenhaar's  "  Archiv  fur  deutsches  Wechsel-  und  Handelsrecht  ", 
V,  p.  139;  "Bremen  Handelsblatt ",  April  19,  1879  (Nr.  1436);  D.  D. 
Field,  "Draft  Outlines  of  an  International  Code",  1872,  I,  pp.  197  et  seq.; 
Cohn,  loc.  cit.,  p.  23. 

382 


Chap.    X]  COMMERCIAL   LAW  [§  13 

sponses  had  been  prepared  beforehand,  notwithstanding  the  great- 
est industry,  and  in  spite  of  the  division  of  the  labors  by  the  crea- 
tion of  a  number  of  sections,  yet  the  difficulties  in  the  way  proved 
so  great  that  on  only  forty-six  points  were  resolutions  adopted  at 
all.  As  stated  in  the  report  of  a  German  delegate,  Lewis,  it  was 
frequently  quite  impossible  to  discuss  fundamental  principles 
properly  or  to  balance  them  against  each  other,  because  they 
differed  so  much.1  Accordingly,  we  are  still  far  from  an  agree- 
ment even  of  experts,  let  alone  the  governments  of  the  various 
nations,  so  far  as  the  entire  field  of  maritime  law  is  concerned. 

Yet  so  much  has  been  accomplished  that  we  have  now  some  pre- 
liminary papers  and  important  drafts  for  a  number  of  maritime 
legal  institutions.  These  subjects  are  (aside  from  the  so-called 
conflict  of  laws) 2  marine  insurance,3  freights,4  and  general  average. 
We  shall  speak  of  the  latter  only,  because  on  this  subject  we  meet 
with  a  novel  method  of  achieving  legal  uniformity  between  nations 
without  the  intervention  of  the  governments. 

The  word  "  average  "  ("  havarie  ")  has  nothing  to  do  with  the 
ordinary  English  word  signifying  "  a  mean  quantity  or  ratio  " ; 
nor  is  it  derived  from  either  of  the  German  words  "  Hafen  "  or 
"  haben,"  as  is  sometimes  surmised.  It  is  derived,  rather,  from 
the  Arabic  term  "  'a war",  which  means  defect  or  injury.  Like 
some  other  words,  such  as  "  mohatra  "  and  "  sensal"  (broker),  it 
came  into  the  Germanic  languages  by  way  of  Italy  and  Spain.5 
Technically,  "  havarie  "  means  any  damage  suffered  by  ship  or 
cargo.  "  Havarie  grosse  ",  or  in  English,  general  average,  is  an 
injury  done  to  ship  or  cargo  intentionally,  by  the  master  of  the 
vessel,  in  order  to  save  ship  and  cargo  from  a  common  peril  of  the 
sea.  The  most  usual  and  the  original  case  of  general  average  is 
the  jettisoning  of  merchandise  to  lighten  the  ship.  Other  kinds 
are  the  cutting  of  the  masts,  slipping  of  the  anchor,  riddance  from 
any  other  troublesome  parts  of  the  ship,  ransom  from  pirates,  etc. 

1  Lewis,  in  "  Ztschr.  f .  Handelsrecht  ",  Vol.  32,  pp.  86  et  seq.,  93.  See  also 
Lyon-Caen'' s  reports  in  Clunet's  "Journal",  1885,  pp.  595  et  seq.,  and  in 
"Revue  de  droit  intern.",  Vol.  19,  p.  389;  also  Daguins,  loc.  cit.,  and 
Barclay,  loc.  cit. 

2  Cf.  Lyon-Caen,  in  "Annuaire  de  l'lnstitut ",  VII,  p.  123;  VIII,  pp. 
124-126;   also  in  Clunet's  "Journal",  1883. 

3  Cf.  Sacerdoti's  "Thirty-three  questions  and  Report",  and  Lyon- 
Caen,  "Annuaire",  VII,  pp.  100-121,  VII,  pp.  127,  128. 

4  Cf.  Voigt,  "Die  neuen  Unternehmungen  zum  Zweck  der  Ausgleichung 
der  in  den  versehiedenen  Seestaaten  geltenden  Havarie  grosse  und  See- 
frachtreehte  ",  Jena,  1882,  and  the  review  of  Lewis,  in  "Ztschr.  f.  Handels- 
recht ",  Vol.  39,  pp.  327-330. 

5  Schroder,  in  Endemann's  "Handbuch  des  Handelsrechts",  IV,  p. 
260;  erroneously,  Frank,  in  "Zeitschr.  f.  Handelsrecht",  Vol.  32,  p.  418. 

383 


§  13]  PART  III      UNIFICATION   OF   LAW  [Chap.    X 

All  these  and  any  analogous  cases  are  governed  by  a  legal  prin- 
ciple which,  following  an  expression  of  the  Roman  jurist  Paulus,1 
we  may  briefly  thus  define :  Sacrificed  for  all,  therefore  restored 
by  all.  In  other  words,  the  damage  must  not  be  suffered  by  that 
party  alone  whose  property  the  captain  caused  to  be  thrown  over- 
board, but  rather  be  shared  in  by  all  who  were  benefited  by  the 
jettison  which  saved  ship  and  cargo. 

This  principle  holds  good  also  with  regard  to  other  things  than 
the  carrying  of  goods.2  Ordinarily,  a  person  is  not  obliged  to  pay 
damages,  wholly  or  partly  compensatory,  to  one  who  suffered  loss 
without  the  slightest  fault  on  the  part  of  the  former.  Where, 
however,  there  is  a  community  of  interest  between  a  number  of 
persons,  and  a  community  of  risk  supervenes,  fair  dealing  3  requires 
that  all  the  participants  in  interest  should  bear  the  loss  which  was 
caused  to  one  of  them  in  order  to  save  all.4 

At  any  rate,  this  fundamental  principle  in  cases  of  loss  at 
sea  has  been  recognized  from  remote  times.  It  may  or  may  not 
be  true,  as  the  English  lawyer,  Jencken,  claims,  that  it  was  known 
to  the  Phoenicians,5  or  even,  as  is  thought  by  others,  goes  back  to 
the  Egyptians  and  Hindus.6  It  is  certainly  a  fact  that  this  just 
principle  was  known  to  the  Greeks,  and  was  received,  as  part  of 
the  "  Laws  of  Rhodes ",  into  Roman  legal  practice,  and  thence 
into  the  maritime  law  of  the  whole  world.7  All  nations  recognize 
this  principle  where  the  master  sacrifices  some  goods  in  order  to 
save  ship  or  cargo ;  all  nations  are  also  agreed  that  this  rule  is  not 
confined  to  cases  of  jettison  proper,  but  extends  to  any  other  inten- 
tional injuries  and  to  necessary  expenditures. 

1  1  Dig.  14,  2:  "Omnium  contributione  sarciatur  quod  pro  omnibus 
datum  est." 

2  According  to  Dernburg,  however,  the  provisions  of  the  "Lex  Rhodia" 
are  not  based  on  a  general  principle  but  rather  on  the  special  relations 
growing  out  of  the  carriage  of  freights.  —  Windscheid,  "  Pandektenrecht  ", 
§  403,  No.  13,  favors  extension  of  the  principle  in  those  cases  only  where  one 
person  is  the  bailee  of  the  goods  of  several  owners. 

3  Jhering,  in  "  Jahrbuch  f iir  Dogmatik",  X,  p.  350,  considers  this  rule 
not  one  of  "aequitas"  merely,  but  of  strict  legal  justice.  Voigt,  also, 
loc.  cit.,  p.  6,  thinks  that  it  represents  a  general  principle  of  law,  appli- 
cable to  ordinary  civil  relations  as  well. 

4  Cf.  Jhering,  loc.  cit.,  and  Hack,  in  "Bremer  Handelsblatt ",  No.  1304 
(Oct.  7,  1876) ;  also  the  two  authors  cited  by  Windscheid,  n.  13,  supra. 
There  is,  of  course,  no  claim  for  contribution  in  cases  where  the  party 
whose  goods  are  destro3red  by  this  sacrifice  itself  obtains  full  compensa- 
tion for  the  loss,  for  where  there  is  no  damage  there  can  be  no  contribution. 

6  Jencken,  "The  York  and  Antwerp  Rules  with  an  explanatory  intro- 
duction."    London,  1877.     P.  2. 

6  See  Clark,  in  "Law  Magazine  and  Review",  4th  series,  162. 

7  Kaltenborn,  "Seerecht",  II,  p.  73.  —  Schroder,  in  Endemann's  "Hand- 
buch",  IV,  p.  261,  n.  9,  n.  10.  —  Wagner,  "Handbuch  des  Seerechts  ",  p. 
56. 

384 


CHAP.    X]  COMMERCIAL   LAW  [§  14 

§  14.  International  Differences  in  Detail.  —  But  this  uniformity 
of  law  disappears  at  once  and  becomes  the  most  confused  diversity 
when  one  begins  to  look  at  the  actual  details. 

What  constitutes  a  "sacrifice"?  For  instance,  where  a  ship 
is  made  to  carry  an  excessive  amount  of  canvas  ("a  press  of  sail  ") 
in  order  to  escape  some  danger,1  and  injury  results,  will  this  come 
within  the  term?  Or  is  not  the  ship-owner  alone  compelled  to 
suffer  the  loss,  in  accordance  with  his  contract  of  carriage  ?  How 
about  the  expenditure  for  munitions  for  defense,  or  the  damages 
paid  to  sailors  for  wounds  received  ?  Again,  what  is  the  rule  relat- 
ing to  indirect  damages  or  expenditure  arising  out  of  the  accident  ? 
In  short,  What  is  the  extent  of  the  community  of  interests  ?  2 

In  this  respect  the  principle  of  the  English  law  is  diametrically 
opposed  to  those  of  most  of  the  continental  States.  According  to 
the  Continental  systems,  the  community  of  interests  persists  even 
where  ship  and  cargo  are,  for  the  time  being,  separated,  on  the 
ground  that  the  master's  obligation  to  carry  the  cargo  to  its  place 
of  destination  still  subsists.  According  to  the  English  rule,  the 
common  liability  ceases  the  moment  ship  or  cargo  are  severally 
placed  in  a  condition  of  safety.  In  the  English  idea,  the  important 
thing  is  to  insure  the  common  safety ;  in  the  Continental  notion, 
the  common  benefit  arising  out  of  effective  measures  taken  for  the 
purpose  determines  liability.  The  difference  becomes  of  practical 
importance  when  a  ship  has  been  driven  into  port  by  stress  of 
weather.  To  mention  but  one  consequence :  Under  the  English 
rule,  the  wages  and  board  of  the  crew,  while  in  such  a  port  of  refuge, 
must  be  borne  by  the  owner  of  the  ship  alone ;  while  on  the  Con- 
tinental principle  these  expenditures  are  part  of  the  general  aver- 
age, and  must  be  borne  in  common  by  the  owners  of  ship  and 
cargo.3 

While  this  is  the  principal  doctrine  in  dispute,  it  does  not  ex- 
haust the  list  of  differences  by  any  means.  The  following  ques- 
tions also  receive  differing  answers :  What  are  the  quotas  to  be 

1  Schroder,  loc.  cit.,  p.  265,  n.  13;  Lewis,  in  "Ztsehr.  f.  Handelsreeht  ", 
Vol.  24,  p.  510. 

2  Ulrichs,  "  Denkschrif  t  betreff  end  die  international  gesetzliche  Rege- 
lung  des  Rechtsverhaltnisses  der  grossen  Havarie",  Berlin,  1878,  p.  6. 
Cf.  also  the  Memorial  of  the  German  Branch,  Assoc,  for  Reform  and 
Codification  of  International  Law,  to  the  Imperial  Chancellor,  Oct.  30, 
1877  (supplement  to  Hack,  loc.  cit.;    Ulrich,  loc.  cit.,  p.  52). 

3  E.g.,  the  German  Commercial  Code,  §  708,  par.  4;  cf.  the  table  in 
Ulrich,  loc.  cit.,  pp.  14,  15;  Jencken,  loc.  cit.,  p.  15,  ad  Rule  VIII;  Lewis, 
in  "Ztsehr.  fiir  Handelsreeht",  Vol.  24,  p.  498.  On  a  recent  develop- 
ment in  English  practice,  see  Schroder,  loc.  cit,  p.  270,  n.  8,  n.  12 ;  Franck, 
loc.  cit.,  p.  420. 

385 


§  14]  PART   III      UNIFICATION    OF    LAW  [Chap.    X 

contributed  by  the  various  parties?  At  what  point  in  time  does 
the  value  of  the  goods,  either  salved  or  lost,  become  fixed  for  the 
purpose  of  determining  the  measure  of  damages  ?  Shall  there  be  a 
right  of  lien  for  the  contributive  quota  ?  Is  liability  to  affect  the 
parties'  entire  assets,  or  to  be  confined  to  the  property  at  risk? 

It  would  seem,  therefore,  that  the  differences  in  the  laws  in  force 
in  different  countries  are  sufficiently  large.  Moreover,  the  rules 
must  be  collated  from  about  thirty  maritime  codes,  written  in 
fourteen  languages.1  Some  of  the  laws  are  not  even  statutory. 
For  instance,  many  of  the  most  important  rules  in  England  are 
nominally  based  on  "the  customs  of  Lloyd's",  but  according  to  the 
opinion  of  some  of  the  English  experts,  in  reality  on  the  personal 
idiosyncrasies  of  the  official  adjusters.2 

§  15.  The  Need  for  Uniformity.  —  Now  the  question  arises,  is 
there  a  real  demand  for  uniformity  ?  A  large  number  of  experts  do 
claim  this  to  be  the  case ;  but  it  must  be  admitted  that  some  noted 
experts,  zealous  though  they  are  for  unification,  assert  that  an 
agreement  must  first  be  reached  (or  at  least  coincidently)  on 
uniform  laws  to  govern  the  freight  contract.  The  three  experts 
referred  to  are  van  Peborgh,  of  Antwerp;  T.  M.  C.  Asser,  the 
Dutch  Ministerial  Councillor  and  professor,  and  E.  E.  Wendt, 
the  naturalized  Englishman,  in  London.3 

The  influence  exerted  by  the  law  of  freightage  on  that  of  general 
average  cannot  be  denied.  Yet  the  history  of  the  movement 
for  uniform  general  average  regulations  shows  that  it  is  easier,  or 
at  least  no  harder,  to  take  up  a  single  question  by  itself.  The 
desire  for  systematic  regularity  ought  to  give  way  to  the  wish  to 
get  rid  as  soon  as  possible  of  an  intolerable  condition,  even  at  the 
risk  of  "bouleverser  toute  l'economie  de  la  loi."  .  .  .  There  is  a 
further  reason  and  to  our  mind  a  decisive  one  why  the  law  of 
general  average  should  be  regulated  internationally  without  wait- 
ing for  a  similar  regulation  of  the  law  of  freights.  That  is  its 
close  relation  to  marine  insurance.  The  real  difficulty,  the  conflict 
of  laws  proper,  does  not  occur  until  ship  and  cargo  have  been 
insured.  Suppose  that  according  to  the  law  of  the  country  where 
the  contract  of  insurance  was  made,  some  particular  kind  of 
damage  is  counted  as  part  of  the  general  average,  which  under 

1  Cf.  Frances  letter  to  Parieu,  in  "Journal  des  Economistes  ",  XI,  p. 
219;  also  Franck,  in  Siebenhaar's  "Ztschr.  fur  deutsehes  Wechsel-  und 
Handelsrecht ",  V,  p.  139. 

2  Siebenhaar's  "Zeitsehrift ",  V,  p.  117;    Ulrich,  loc.  cit.,  p.  51. 

3  Cf.  Asser  in  "Revue  de  droit  international",  XII,  p.  17;  also  Voigt, 
Luc.  cit. 

386 


Chap.   X]  COMMERCIAL   LAW  [§  15 

the  law  of  the  country  of  destination  does  not  belong  to  it.  In 
such  a  case,  it  may  happen  that  the  insured  will  get  nothing,  or 
(which  is  just  as  improper)  manages  fraudulently  to  be  paid  twice.1 
The  British  adjusters  are  especially  prone  to  arrogate  to  them- 
selves the  right  of  changing  foreign  general  average  claims  in 
accordance  with  English  notions,  thereby  causing  unmerited  and 
unavoidable  losses  to  the  insured.2  Now  all  these  troubles  might  be 
cured  radically  by  one  step,  —  a  step  which  has  in  fact  been  seriously 
proposed  three  times,  once  in  1823  by  a  Hamburg  insurer,  Tonnies, 
again  in  1877  by  Lloyd's,  the  great  English  association  of  insurers, 
and  once  more  in  1879,  by  a  German  merchant  and  insurance  agent, 
J.  P.  Schneider.3  Their  remedy  is  simply  this  :  Abolish  altogether 
the  antiquated  principle  of  general  average,  which  has  become 
quite  superfluous  since  the  insurance  companies  have  undertaken 
to  serve  the  same  purpose. 

Aside  from  these  insurers,  however,  nobody  seems  to  have  ex- 
pressed himself  in  favor  of  this  cure  by  total  amputation.  On  the 
other  hand,  lawyers  like  Kaltenborn,4  and  more  recently  Lewis, 
de  Courcy,  Molengraaff,  and  Voigt,  have  affirmed  that  there  is 
good  reason  for  maintaining  the  institution  of  general  average.5 
As  a  matter  of  fact,  the  principle  covers  a  much  wider  field  than 
the  insurance  contract.  In  itself  it  affords  greater  legal  protection 
than  any  mere  agreement.  It  protects,  moreover,  the  owners  of 
ship  and  cargo  against  arbitrary  or  excessively  delayed  jettisons, 
because  the  master  of  the  ship  knows  that  his  vessel  will  have  to 
bear  at  least  a  portion  of  the  loss.  Finally,  the  loss  is  distributed 
among  a  greater  number  of  parties  because  ordinarily  ship  and 
cargo  are  insured  in  different  companies.  Consequently  it  would 
seem  as  if  even  the  insurance  companies  did  retain  some  interest 
in  the  continued  existence  of  general  average.  While  it  is  true  that 
great  abuses  have  grown  out  of  it,  the  institution  is,  nevertheless, 
capable  of  reform.  And  after  all,  if  one  were  to  contemplate  only 
the  abuses  of  legal  institutions,  there  would  be   (as  Alfred  de 

^'Bremer  Handelsblatt",  Oct.  28,  1860  (Nr.  461);  also  Reatz,  in 
Endemann's  "Handbueh",  IV,  p.  445,  n.  11,  where  the  opinions  of  the 
adjusters  are  treated  as  binding  precedents. 

2  Hach,  in  "Bremer  Handelsblatt",  Oct.  7,  1876  (Nr.  1304);  cf.  also 
Ulrich,  p.  12. 

3  J  oh.  Ph.  Schneider,  "  Seerechtliche  Fragen,  nebst  einer  Abhandlnng 
betreffend  die  iiberlebte  Institution  dergemeinen  Haverei  ",  Berlin,  1879; 
cf.  Lewis,  in  "Ztschr.  fur  Handelsrecht  ",  Vol.  24,  pp.  495,  496;  Voigt, 
loc.  cit.,  p.  5. 

4  See  Kaltenborn,  "Seereeht",  II,  pp.  74  et  seq. 

«  Cf.  "Ztschr.  f.  Handelsrecht",  Vol.  24,  pp.  328,  521,  524,  n.  1 ;  Vol. 
28,  p.  421  ;    Voigt,  loc.  cit.,  p.  6  et  seq. 

387 


§  15]  PART  III      UNIFICATION   OF   LAW  [Chap.    X 

Courcy  has  pointed  out)  more  reason  for  abolishing  insurance 
than  for  abolishing  general  average.1 

§  1G.  The  York  Rules.  —  If,  then,  the  need  for  the  institution 
exists  and  its  total  abolition  is  not  to  be  recommended,  there 
remains  the  slower  but  surer  way,  —  unification  of  the  law.  It 
was  again  the  British  National  Association  for  the  Promotion  of 
Social  Science  which  gave  the  impulse  in  this  direction.  Among 
the  purposes  of  this  great  association  (of  which  we  have  spoken 
above)  are  the  improvement  of  the  laws,  and  also  the  promotion  of 
social  reforms  in  the  fields  of  sanitation,  education,  and  economics.2 
In  1860,  the  Association  issued  a  judiciously  phrased  circular 
inviting  the  most  notable  bodies  interested  in  marine  affairs  to 
send  delegates  to  the  fifth  annual  meeting  at  Glasgow.  The 
circular,  in  which  the  need  for  regulating  the  principle  of  general 
average  was  very  clearly  set  forth,  was  signed,  among  others,  by  the 
chairmen  of  the  most  important  shipping,  insurance,  and  mercantile 
bodies,  —  certainly  an  indication  that  the  evils  caused  by  the 
prevailing  diversity  of  law  were  very  generally  felt  in  England. 
The  chairman  of  Lloyd's  not  only  was  one  of  the  signers,  but  was 
the  guiding  spirit  of  the  movement.3  The  invitation  was  favor- 
ably received  everywhere,  and  accordingly  representatives  of 
interested  circles  in  England,  Belgium,  Holland,  Denmark,  Ger- 
many, and  the  United  States  met  at  Glasgow  on  September  25, 
I860. 

However,  though  a  number  of  resolutions  were  passed  at 
this  conference,  they  were  carried  by  very  slender  majorities  only. 
One  single  point  was  adopted  unanimously ;  viz.  a  resolution  ex- 
cluding the  practice  of  "  press  of  sail  "  (mentioned  above)  from 
the  facts  constituting  general  average.  This  unanimity  has  been 
truly  called  a  victory  of  ordinary  common  sense.4  The  fact  that 
other  points  found  such  small  majorities  proved  merely  that  the 
subject  had  not  yet  been  sufficiently  prepared  by  discussion.  The 
officers  of  the  conference  were  therefore  directed  to  draw  up  a 
complete  model   Act.     Accordingly,   at  the   next   conference   in 

1  Lewis,  in  "Ztsehr.  f.  Handelsrecht ",  Vol.  24,  p.  524. 

2  "Bremer  Handelsblatt ",  Oct.  13,  1860  (Nr.  470). 

3  Cf.  "Bremer  Handelsblatt",  Oct.  7,  1876  (Nr.  1304). 

4  "Bremer  Handelsblatt",  1860,  Nr.  471.  —  Contrd,  Franck,  in  Sieben- 
haar's  "Archiv",  V,  p.  131,  and  "Ztsehr.  fur  Handelsrecht",  Vol.  28,  p. 
425;  also  the  author  of  the  article  on  general  average  in  XVIII,  "Law- 
Magazine  and  Review",  335  (1865).  Cf.  also  "Memorial  to  the  Imperial 
Chancellor'',  in  Ulrich,  loc.  cit.,  p.  55.  —  On  the  Glasgow  meeting,  cf. 
especially  Franck,  loc.  cit.;  Hack,  in  "Bremer  Handelsblatt",  1876,  Nr. 
1304,  and  in  Clunefs  "Journal  de  droit  international",  IV,  p.  132;  also 
Ulrich,  loc.  cit.,  p.  52. 

388 


Chap.   X]  COMMERCIAL   LAW  [§  16 

London  an  elaborate  plan  was  submitted  by  them ;  but  that  con- 
ference appointed  a  new  international  committee  to  draw  up  a 
new  scheme. 

This  committee  saw  fit  to  carry  on  its  deliberations  in  writing, 
and  to  this  fact  we  owe  a  number  of  very  interesting  papers. 
Among  these,  the  articles  by  R.  Lowndes,  an  adjuster  and  the 
author  of  a  leading  treatise  on  "  General  Average  ",  and  E.  E. 
Wendt,  deserve  special  mention.  The  product  of  the  labors  of 
this  committee,  however,  was  more  than  insignificant.  Instead 
of  drawing  up  a  complete  model  Act,  as  they  had  been  directed, 
the  members  were  satisfied  with  stating  the  principal  points  of 
the  English  law  which  required  amendment,  on  the  ground  that 
the  main  obstacle  to  uniformity  was  found  in  the  customary 
law  of  British  admiralty  practice.1 

A  third  international  Conference  was  then  called  at  York  on 
September  26,  1864,  in  order  to  examine  this  report.  There  were 
present  representatives  not  only  of  the  maritime  commercial 
interests,  but  also  delegates  of  the  Belgian,  Russian,  Swedish,  and 
Mecklenburg  governments.  The  commercial  representative  bodies 
of  the  German  Hanseatic  cities  had  sent  as  a  delegate  C.  H.  H. 
Franck  of  Liibeck.  Three  drafts  were  laid  before  this  Conference  : 
The  recommendations  of  the  above  committee  referring  to  English 
law ;  a  complete  draft  in  the  French  language,  submitted  by  Engel 
and  Van  Peborgh,  representing  the  City  of  Antwerp ;  and  a  third 
draft  offered  by  Franck  of  Liibeck.  Unfortunately,  the  Conference 
voted  to  take  up  nothing  but  the  recommendations  intended  for 
England,  which  gave  the  representatives  of  Lloyd's  their  desired 
opportunity  to  withdraw  from  the  Conference,  and  to  make  their 
exit  with  very  neat  stage  effect ;  though  they  themselves  had  begun 
the  movement,  it  now  struck  them  as  highly  ominous  when  resolu- 
tions were  passed  adverse  to  the  authority  of  their  own  customs. 
Accordingly  they  offered  the  defense  that  the  Conference  had 
abandoned  the  original  international  aims  of  the  movement,  and 
had  by  its  resolutions  made  the  existing  legal  situation  consider- 
ably worse. 

By  this  withdrawal  the  movement  was  practically  defeated. 
The  rump  Conference  continued  to  sit  as  a  matter  of  form,  and 
even  recommended  that  the  eleven  points  adopted,  commonly 
known  afterwards  as  the  York  Rules,  should  be  taken  as  the  basis  of 
future  legislation  on  the  matter  of  general  average  by  the  various 
governments.  Moreover,  an  urgent  recommendation  was  adopted 
1  Hack,  "Bremer  Handelsblatt",  loc.  cit. 
389 


§  16]  PART  III      UNIFICATION   OF  LAW  [Chap.    X 

to  put  these  York  Rules  into  practice  at  once,  by  inserting  them  in 
the  various  contracts  customarily  made  in  the  course  of  marine 
commerce.  After  passing  these  resolutions,  however,  the  Con- 
ference declared  that  its  purpose  had  been  accomplished  and  ad- 
journed sine  die,  after  discharging  the  international  committee. 

§  17.  The  York-Antwerp  Rules.  —  In  truth,  hardly  anything 
had  been  achieved  by  the  York  Conference.  Even  its  eleven 
theses  were  substantially  a  failure.  For  instead  of  establishing  a 
principle  they  were  content  with  deciding  in  advance  a  number  of 
specific  cases.  Moreover,  they  were  obviously  based  on  a  series 
of  compromises,  and  the  various  rules  were  not  even  consistent 
with  each  other.1 

After  the  fiasco  suffered  at  York,  the  matter  lay  in  abeyance 
almost  completely  for  a  number  of  years.  It  is  true  that  at  a 
subsequent  meeting  of  the  Association  above  mentioned,  held 
in  Sheffield  during  the  year  1865,  ten  rules  relating  to  international 
freight  traffic  were  adopted ;  in  which,  among  other  things,  the 
rates  of  contribution  to  the  general  average  were  fixed  in  accordance 
with  the  York  Rules.2  In  1868  and  1874  also,  the  adoption  of  an 
international,  uniform  law  regulating  maritime  commerce  was 
discussed  at  a  delegate  conference  of  the  North  German  seaport 
cities ;  and  a  petition  was  sent  to  the  Imperial  Chancellor,  suggest- 
ing that  he  take  steps  towards  the  adoption  of  an  international 
code,  or  at  least  of  portions  of  the  subject  such  as  freight  regu- 
lations and  general  average.  All  this,  however,  had  no  immediate 
effect. 

Yet  the  idea  was  dormant  only.  In  1876,  it  was  to  awaken  to 
new  life  and  significance.  Credit  for  this  revival  must  be  given 
to  the  International  Association  for  Reform  and  Codification  of 
Law  of  Nations,  the  same  organization  (ante,  §  4)  which  adopted 
the  twenty-seven  rules  for  negotiable  instruments.3  A  committee 
for  preliminary  discussion  of  the  questions  growing  out  of  the 
law  of  general  average  was  appointed  at  the  Bremen  meeting. 
The  committee  held  sessions  in  England  and  decided  to  take  the 
eleven  York  Rules  as  a  basis  of  discussion,  notwithstanding  all 
their  defects  and  inconsistencies.  In  Germany,  where  the  very 
comprehensive  and  consistent  general  average  provisions  of  the 

1  Cf.  Ulrich,  loc.  dt.,  p.  53.  —  "Bremer  Handelsblatt",  1861,  Nr.  483, 
attempts  unsuccessfully  to  defend  the  Rules  against  the  charge  of  dis- 
regarding principle. 

2  Franck,  loc.  cit.,  p.  138 ;  Voigt,  loc.  cit.,  p.  13 ;  Lewis,  "Ztschr.  f.  Han- 
delsrecht  ",  Vol.  29,  p.  328. 

3  Cf.  suprd,  p.  367. 

390 


Chap.   X]  COMMERCIAL  LAW  [§17 

Commercial  Code  had  stood  the  test  in  every  respect,  this  proposi- 
tion could  not  be  received  without  opposition.  The  German 
branch  of  the  Association  drew  up  a  counter-proposal,  amending 
the  York  Rules  in  accordance  with  Continental  views,  and  supply- 
ing deficiencies. 

At  Antwerp,  in  1877,  the  fifth  meeting  of  the  Association  was  held 
with  large  attendance.  Here  the  German  ideas  on  the  subject 
were  adopted.  On  almost  all  points,  the  Continental  system  was 
victorious  over  the  English ; !  but  the  motion  to  adopt  the  defini- 
tion of  general  average  in  the  German  Commercial  Code  was 
defeated.2  The  York  Rules  were  amended  by  changing  five  of  the 
eleven  sections  in  accordance  with  the  German  plan ;  and  on 
motion  of  the  Bremen  delegation  another  rule,  following  the  Ger- 
man law,  was  added.  The  set  of  rules  thus  increased  was  given 
the  name  "  York-Antwerp  Rules  "  by  the  Association. 

Unquestionably,  the  York-Antwerp  Rules  were  still  defective. 
They  did  not  exhaust  all  questions  relating  to  general  average,  nor 
even  treat  all  phases  of  those  matters  they  include.  Moreover, 
they  lacked  a  leading  principle,  because  the  definition  of  general 
average  failed  of  adoption.3 

The  further  criticism  was  made  that  the  Rules  merely  added  to 
existing  codes  still  another  which  is  not  fully  in  accord  with  any 
of  the  bodies  of  law  actually  in  effect.  It  was  said  that  it  would 
have  been  better  if  one  of  the  existing  codes,  perhaps  the  German, 
or  the  Swedish,  or  the  French  draft  of  1869,  had  been  adopted.4 
But  this  criticism  fails  to  take  into  account  that  in  all  probability 
national  prejudice  would  be  aroused  even  more  vehemently  if 
instead  of  making  some  concessions  to  the  spirit  but  not  to  the 
text  of  alien  laws,  the  entire  law  of  a  particular  foreign  country 
were  adopted  without  change.  Moreover,  the  York-Antwerp 
Rules  eliminated  profound  differences  in  the  law,  and  solved  some 
very  important  problems  so  happily  that  even  in  their  defective 
form  they  were  of  considerable  benefit  to  the  shipping  interests.5 
Alfred  de  Courcy  described  the  various  sections  almost  without 
exception  as  thoroughly  practicable  ;  6  and  even  Molengraaff,  who 
raised  many  objections  against  details,  came  to  the  conclusion  that 

1  See  memorial  to  the  "  Imperial  Chancellor  ",  in  Ulrich  loc.  cit.,  p.  53. 

2  Clunet's  "Journal  de  droit  international  ",  IV,  p.  577. 

3(7/.  "Ztschr.  f.  Handelsrecht ",  Vol.  24,  p.  524,  n.  1;  p.  500;  Vol. 
28,  p.  422 ;    Voigt,  loC.  cit.,  p.  4. 

4  See  Franck  on  Molengraaff,  in  "Ztschr.  f.  Handelsrecht",  Vol.  28, 
p.  423. 

5  Lewis,  loc.  cit.,  Vol.  24,  p.  501. 

•  "Ztschr.  f.  Hand.",  Vol.  24,  p.  524,  n.  1. 

391 


§  17]  PART   III      UNIFICATION    OF   LAW  [Chap.    X 

the  tenor  of  the  future  international  code  will  be  substantially  like 
the  York-Antwerp  Rules.1 

As  for  the  representatives  of  Lloyd's,  they  opposed,  at  Antwerp, 
not  merely  each  separate  concession  to  the  Continental  view,  but 
finally  filed  another  protest  against  the  whole  set  of  resolutions. 
This  time  they  put  forward  a  reason  we  have  already  touched 
upon,  viz.  that  the  whole  institution  of  general  average  is  anti- 
quated and  superfluous. 

§  IS.  Uniformity  by  Private  Agreement.  — ■  An  opposition  carried 
to  such  an  extent  caused  a  great  deal  of  feeling,  and  led  to  a  coali- 
tion of  ship-owners,  insurers,  merchants,  and  adjusters  against 
Lloyd's.  The  conservative  party  represented  by  Lloyd's  was  in 
England  opposed  by  reformers,  especially  in  Manchester,  Birming- 
ham, Sheffield,  Leeds,  and  Bradford.  These  adopted  the  signifi- 
cant resolution,  at  a  large  meeting  in  London,  presided  over  by 
Sir  Travers  Twiss,  that  the  York-Antwerp  Rules  ought  to  be  put 
into  effect  at  once,  by  means  of  private  agreement. 

For  this  purpose,  the  participants  agreed  over  their  signatures, 
to  insert  in  all  their  bills  of  lading  and  insurance  policies,  beginning 
on  January  1,  1879,  the  provision  that  general  average  shall  in  a 
given  case  be  regulated  in  accordance  with  the  York-Antwerp 
Rules.2  The  number  of  signers,  in  Great  Britain  alone,  amounted 
to  789  by  January  1,  1879.  The  signatures  represented  43%  of  all 
English  shipping.  As  there  were  many  signers  of  the  agreement 
in  Germany,  the  United  States,  and  Canada  also,  and  as  the  insur- 
ance companies,  too,  accepted  the  clause,3  the  York-Antwerp 
Rules  thus  came  into  practical  effect. 

Opinions  differ  on  the  wisdom  of  commercial  interests  thus  help- 
ing themselves  and  getting  rid  of  the  diversity  of  law  without  the 
aid  of  governments.  Of  course  there  is  no  doubt  that  they  had  a 
perfect  right  to  do  so  ;  that  is  a  necessary  consequence  of  the  free- 
dom of  contract.4  Insurers  and  insured,  carriers  and  shippers, 
are  at  liberty  to  agree  among  themselves  as  to  who  shall  bear  the 
loss  when  damage  is  suffered.  Some  will  doubt,  however,  whether 
such  voluntary  measures  will  tend  towards  unification  of  the  law. 
It  is  true  that  so  long  as  the  rules  are  in  effect  only  by  consent, 

1  Franck,  loc.  cit.,  p.  427. 

2  See  "Memorial  of  the  Bremen  Chamber  of  Commerce  on  the  practical 
introduction  of  the  York  and  Antwerp  Rules  ",  Nov.  26,  1878.  —  The  text 
of  the  clause  criticized  and  an  amendment  proposed  by  Molengraaff,  in 
"Ztsehr.  f.  Handelsr.",  Vol.  28,  p.  429.  —  See  also,  Voigt,  loc.  cit. 

3  See  also  the  "Supplement  to  the  general  insurance  clauses  ",  in  Voigt, 
loc.  cit.,  May  19,  1881. 

4  Endemann's  "  Handbueh  ",  IV,  pp.  8,  n.  29,  281,  n.  5.     Voigt,  loc.  cit.,  7. 

392 


Chap.   X]  COMMERCIAL  LAW  [§  18 

nobody  can  be  compelled  to  insert  the  clause  in  the  contracts  he 
enters  into  or  the  documents  he  draws.  Yet  it  would  seem  that 
the  intelligence  of  the  commercial  world  is  underestimated  if  one 
assumes  that  any  appreciable  number  of  people,  from  whim  or 
obstinacy,  would  refuse  to  avail  themselves  of  legal  uniformity  by 
accepting  these  reasonable  rules.  Nor  should  one  overlook  the 
influence  exerted  by  the  example  of  the  hundreds  and  thousands  of 
parties  that  have  bound  themselves  by  their  signatures  to  apply 
those  rules  habitually,  and  who  in  fact  have  observed  them  con- 
tinuously ever  since.  Finally,  one  must  consider  the  force  of  cus- 
tom, which  in  mercantile  affairs  especially  has  so  often  produced 
actual  law. 

To  be  sure,  the  York-Antwerp  Rules  have  not  become  binding 
by  international  law  or  treaty ;  but  it  is  quite  conceivable  that  they 
may  become  such  in  international  commerce,  as  has  been  the  case 
repeatedly  with  standard  forms  of  documents.1  One  practical 
success,  however,  was  not  long  in  following;  for  the  subsequent 
legislative  enactments  were  found  to  be  in  many  respects  identical 
with  the  Rules.  This  is  true  of  the  Belgian  law  of  1879,  the  Italian 
Code  of  Commerce  of  1882,  and  the  Spanish  Commercial  Code  of 
1885.2 

As  a  matter  of  fact,  nothing  was  farther  from  the  minds  of  pro- 
moters of  uniformity  in  general  average  law  than  a  desire  to  get 
along  permanently  without  governmental  aid.3  Private  action 
was  to  be  nothing  but  a  provisional  remedy ;  at  the  same  time  it 
served  as  a  means  of  impressing  upon  the  public  the  need  of  thorough 
redress  for  this  grievance  of  the  commercial  world,  and  of  gaining 
thereby  the  assistance  of  governmental  authorities.  In  Germany 
at  least,  this  was  stated  as  clearly  as  possible  by  interested  parties 
in  Bremen  and  Berlin  as  far  back  as  the  year  1879.  Petitions 
were  addressed  to  the  Imperial  Chancellor  and  to  the  Reichstag. 
In  accordance  therewith,  the  Federal  Council  took  the  matter  up 
and  directed  its  committee  on  marine  affairs  to  inquire  into  the 
subject,  with  the  assistance  of  a  special  board  of  experts.  This 
board,  of  which  Privy  Councillor  Roesing  was  the  chairman,  re- 
ported that  in  connection  with  the  provisions  of  the  German  Com- 
mercial Code  the  York-Antwerp  Rules  should  be  entirely  accept- 
able to  Germany,  excepting  one  section  which  ought  to  be  slightly 

1  Lewis,  in  "  Ztsehr.",  Vol.  24,  p.  499.  Cf.  Goldschmidt,  "  Handelsrecht ", 
I,  pp.  344  et  seq. 

2  Lyon-Caen,  in  Clunet's  "Journal",  XII,  p.  614,  1885. 

3  See  also  F ranch,  loc.  cit.,  p.  422. 

393 


§  18]  PART   III      UNIFICATION   OF   LAW  [Chap.    X 

amended  or  rather  interpreted.1  The  board  expressed  its  approval, 
and  encouraged  the  movement  to  give  practical  effect  to  the  Rules 
by  means  of  private  contract.  It  also  declared  it  to  be  desirable 
that  the  German  Empire  should  enter  into  negotiations  with  the 
other  maritime  countries,  with  a  view  to  agreeing  upon  a  uniform 
general  average  law ;  and  finally  the  board  recommended  that  the 
York- Antwerp  Rules  should  be  used  as  a  basis  of  such  negotiations, 
but  that  there  be  added  five  more  rules  relating  to  questions  arising 
out  of  general  average.2 

[At  the  Liverpool  meeting  of  1890,  the  International  Law  Asso- 
ciation devoted  almost  the  entire  session  to  the  Rules.  Sieveking, 
chief  justice  of  the  Superior  Court  of  Hanseatic  Cities,  presided ; 
and  the  Rules  in  their  present  form  represent  the  results  of  this 
meeting.  The  Liverpool  deliberations  took  a  broader  scope  than 
those  of  prior  meetings ;  they  modified  some  of  the  existing  rules, 
and  added  some  new  ones.  They  did  not,  however,  succeed  in 
making  a  complete  code  of  the  subject  of  general  average  ;  nor  did 
they,  after  the  opening  discussion,  even  attempt  to  do  so,  —  the 
question  being  referred  to  some  future  session.  A  debate  on  the 
definition  of  the  general  principle  of  average  was  ushered  in  by 
Sir  Thomas  Barclay's  exhaustive  presentation  of  the  subject ;  but 
the  Conference  adhered  to  its  traditional  attitude  to  the  Rules  as 
essentially  practical  measures,  and  refused  to  grapple  with  ab- 
stractions. Their  method  in  this  respect  had  demonstrated  to 
success,  and  they  would  not  risk  it  by  pursuing  any  loftier  ambi- 
tions. 

At  several  later  meetings  of  the  Association,  the  Rules  form  the 
subject  of  discussion  in  one  or  another  aspect ;  and  at  Antwerp,  in 
1903,  a  19th  Rule  was  proposed  and  debated.  But  any  change  of 
the  now  familiar  text  of  the  York-Antwerp  Rules  was  regarded  as 
questionable ;  and  so  the  new  Rule,  though  adopted,  was  kept 
separate  from  the  original  ones,  and  was  designated  the  Antwerp 
Rule  of  1903. 

Such  is  the  history  of  the  York-Antwerp  Rules.  But  it  is  by  no 
means  a  closed  chapter.  For  the  authors  of  that  great  work  have 
never  abandoned  their  initial  aspiration  to  create  a  true  law  of 

1  "  [n  connection  with  Rule  X,  the  committee  would  like  to  see  the  con- 
tribution of  the  ship's  master,  relative  to  repairs,  regulated  in  accordance 
with  the  last  sentence  of  §  719  [of  the  German  Commercial  Code];  besides, 
it  ought  to  be  made  clear  that  'port  charges'  includes  not  merely  the 
official  dues  but  all  expense  incurred  while  in  port." 

2  The  resolutions  are  printed  in  "Bremer  liandelsblatt",  Nr.  1434, 
April  5,  1879,  p.  127.  See  also  Lewis,  "Ztschr.  f.  Handelsr.",  Vol.  24,  p. 
523. 

394 


Chap.   X]  COMMERCIAL   LAW  [§  19 

nations  and  to  secure  the  adoption  of  the  Rules  by  national  legisla- 
tion throughout  the  world.1] 

§  19.  Conclusion.  —  The  three  fields  of  railway  freight  law, 
negotiable  instruments,  and  general  average,  are  by  no  means  the 
only  parts  of  the  law  of  international  commerce  regarding  which 
uniformity  is  desirable.  Suggestions  tending  in  the  same  direction 
have  also  been  made  with  regard  to  the  remaining  parts  of  mari- 
time law,  to  boards  of  trade,2  to  warranties,3  to  some  forms  of 
trading  companies,4  to  quasi-negotiable  papers,5  to  bankruptcy 
(which  is  treated  in  many  codes  as  part  of  commercial  law),6  and  to 
copyright,  patent,  and  trade-mark  law ;  on  the  last  two  subjects, 
promising  results  have  already  been  obtained.7 

The  simultaneous  tendency  of  so  many  governments  and  asso- 
ciations towards  eliminating  local  differences  in  so  many  different 
branches  of  the  law  of  international  intercourse  and  towards  the 
final  attainment  of  a  world  law  in  these  matters,  proves  clearly 
that  a  universal  need  is  felt  for  such  unification.  It  also  assures 
us  to  some  extent  of  the  future  attainment  of  this  great  goal.  To 
be  sure,  the  edifice  of  a  uniform  law  of  international  intercourse 
can  rise  but  slowly,  stone  upon  stone,  in  the  course  of  decades  and 
centuries.  There  may  be  delays  and  failures.  Yet  the  goal  will 
be  reached,  provided  discouragement  and  rashness  are  alike 
avoided.  The  work  done  at  Berne  and  at  Bremen,  at  York  and 
at  Antwerp,  justifies  the  expectation  that  in  the  law  of  interna- 
tional intercourse  some  day  the  saying  will  be  verified :  "  Nee 
erit  alia  lex  Romae,  alia  Athenis."  8 

1  [Quoted  from  Bousquel,  "  Commentaire  pratique  des  Regies  d'York  et 
d'Anvers  1903  ",  Paris,  1906.  —  Ed.] 

2  Schnetzler,  "La nature  juridique  du  jeu  des  bourses",  Lausanne,  1878. 

3  Webster,  "Law  Mag.  and  Rev.",  1873,  pp.  1082  et  seq.  —  0.  Borchardt, 
"  Handelsgesetze  des  Erdballs",  I,  p.  xvii. 

4  Borchardt,  loc.  cit.  —  Jencken,  "Annuaire  de  l'lnstitut",  V,  p.  202. 

5  Beisert,  "Materialien  zur  Frage  der  ubereinstimmenden  Gesetzge- 
bung  der  Inhaberpapiere  ",  1879. — De  Neufoille,  at  the  Frankfort  meet- 
ing of  the  Association  for  Reform  and  Codification  of  International  Law, 
1878.  — ■  Resolutions  passed  at  meeting  of  same  association  at  Bern,  1880.  — 
Bfunner,  in  Endema?in's  "Ilandbuch",  p.  200,  n.  24.  —  Marcus,  "Zur 
Frage  der  internationalen  Regelung  der  Rechtsverhaltnisse  der  Inhaber- 
papiere", in  ''Ztschr.  f.  Handelsrecht ",  Vol.  26,  pp.  16-30,  18S6 ;  Clunet, 
loc.  cit.,  VI,  p.  222 ;   "Annuaire  de  l'lnstitut ",  III,  p.  400 ;   V,  p.  202. 

6  Second  Italian  Lawyers'  Congress,  Turin,  1880.  Paper  read  by  the 
Russian  State  Councillor  v.  Tuhr.  Cf.  Martens,  "Volkerrecht ",  II,  p. 
356.     Clunet,  loc.  cit.,  VII,  p.  625  ;   "Annuaire  ",  V,  p.  201. 

7  On  the  history  and  literature  of  the  movement,  see  suprd,  and  "Ras- 
segna",  I,  pp.  545,  546. 

8  To  be  sure,  Cicero  meant  this  in  quite  a  different  sense.  Cf.  Borchardt, 
loc.  cit.,  p.  xiii,  n.  1.  —  Also  Krueger,  "  Geschichte  der  Quellen  und  Litera- 
tur  des  Romischen  Rechts",  p.  41,  n.  10. 

395 


§1] 


PART   III      UNIFICATION    OF   LAW 


[Chap.  XI 


Chapter  XI 

THE  PROGRESS  OF  THE   UNIFICATION  OF  MARITIME 

LAW 

By  Georges  Ripert  x 


§  1.  Distinctive  and  Original  Char- 
acter of  Maritime  Law. 

§  2.     Traditionalism  and  Evolution. 

§  3.  Present  Tendencies  of  Mari- 
time Interests. 


§  4.  History  of  Unification  of  Mari- 
time Law. 

§  5.     Methods  of  Unification. 

§  6.  Modern  Attempts  at  Unifica- 
tion. 


§  1.  Distinctive  and  Original  Character  of  Maritime  Law.  — ■ 
Maritime  law  can  not,  without  grave  misunderstanding,  be  viewed 
as  an  application  of  the  law  of  commerce  by  land,  to  the  instru- 
mentalities and  personnel  of  maritime  trade.  It  is  a  principal 
and  not  a  subordinate  law.  To  explain  this  feature,  we  need  only 
recall  the  economic  conditions  under  which  this  branch  of  the  law 
developed. 

For  a  long  while  there  was  no  tie  which  related  commerce  by 
sea  to  commerce  by  land.  In  antiquity  and  the  Middle  Ages  the 
cities  carrying  on  a  trade  by  sea,  sought  to  isolate  themselves  so 
far  as  possible,  in  order  to  make  their  defense  easier.2  They  were 
centers  of  movable  wealth.  At  a  time  when  such  riches  were 
rare,  the  chief  objects  of  maritime  trade  were  gold,  rich  fabrics, 
precious  metals,  spices,  and  purple.  The  merchant  marine  had  no 
relation  then  to  the  productive  forces  of  the  country  to  which  it 
belonged.3     There  is  nothing  surprising  in  the  fact  that  maritime 

1  [Professor  of  Comparative  Civil  Law  in  the  University  of  Aix-Mar- 
seilles. 

This  Chapter  forms  §§44-73  (with  slight  omissions)  in  Volume  I  of  the 
author's  "  Droit  Maritime  ",  forming  a  part  of  the  Series  entitled  "Traite 
general  du  Droit  Commercial",  edited  by  Professor  Edmond  Thaller 
(Paris,  1913,  A.  Rousseau). 

Other  works  of  this  author  include  :  "Essai  sur  la  vente  commerciale  ", 
(1875).  —  Ed.] 

2  De  Rousiers,  "Les  forces  productrices  de  la  France",  p.  93. 

3  The  commerce  of  the  Eanseatic  Cities  may  be  cited  as  the  most 
st  riking example  of  such  a  type  :  "  Uni  il  the  Inst  century  ",  says  de  Rousiers 
{ibid.,  i>.  53),  "  traces  remained  of  this  spirit  ;  in  1X40  the  city  of  Hamburg 
still  appeared  much  interested  in  separating  its  port  from  the  surrounding 
territory  and  in  avoiding  every  sort  of  relation  with  the  country  behind  it ; 
;m  attitude  which  astonishes  us  to-day  when  we  realize  the  close  and 
powerful  ties  at  present  relating  Hamburg  to  the  surrounding  country." 

396 


Chap.   XI]  MARITIME   LAW  [§  1 

commerce  was  governed  by  rules  which  owed  almost  nothing  to 
the  common  law  of  the  different  nations. 

Roman  Law. — While,  then,  the  jurists  of  early  law  found  in 
the  Digest  and  Code  of  Justinian  a  few  provisions  relating  to 
maritime  law,  it  was  not  Roman  law  which  was  to  govern  com- 
mercial navigation.  That  that  law  had  certain  influence  is  pos- 
sible ;  but  its  influence  was,  we  believe,  indirect.  And  moreover, 
the  compilations  of  maritime  usages  are  found  written  in  the 
vulgar  tongue  at  a  time  when  all  the  learned  classes  were  em- 
ploying Latin.  Nor  was  the  written  general  custom  of  the 
land  referred  to  in  maritime  affairs.  It  voluntarily  avoided  the 
whole  field  of  maritime  contracts,  and  no  effort  was  made  to  fill 
out  the  deficiencies  of  local  usage  by  appeal  to  the  common  law. 

The  French  Marine  Ordinance  of  1G81  did  not  weaken  this 
individuality.  It  may  be  said  to  have  even  accentuated  it,  since 
it  united  in  a  single  body  all  the  provisions  of  the  criminal,  private, 
procedural,  and  public  law,  relating  to  maritime  subjects.  Valin 
and  Emerigon  wrote  commentaries  upon  the  Ordinance,  citing 
the  early  texts,  the  usages  which  were  still  preserved,  and  foreign 
customs.  Pothier,  the  greatest  jurist  of  the  1700  s,  showed  him- 
self obviously  inferior  to  these  authors,  when  he  undertook  to 
explain  maritime  law. 

So  this  body  of  law  was  preserved,  in  all  its  originality,  without 
foreign  contribution  or  corruption,  possessing  its  own  commenta- 
tors, judges,  and  public.  It  was  to  survive  the  French  Revolution 
without  shipwreck.  Institutions,  which,  to  the  superficial  and 
theoretical  mind  of  the  period,  seemed  contrary  to  the  principle 
of  equality  and  the  free  right  to  labor,  as  for  instance  marine  regis- 
tration and  the  "  corporation  des  prud'hommes  pecheurs  ",  were 
not  molested.  However,  the  courts  of  admiralty  succumbed,  and 
their  abolition  was  a  severe  blow  to  the  distinctive  character  of 
maritime  law. 

The  French  Commercial  Code.  —  It  might  have  been  feared  that 
the  codification  of  the  early  1800  s  would  destroy  the  originality 
of  maritime  law.  For  the  first  time  this  law  found  a  place  within 
the  general  body  of  private  law.  But  the  jurists  who  undertook 
the  codification,  knowing  little  of  the  rules  of  maritime  trade, 
paused  respectfully  before  the  work  of  Louis  XIV,  which  had  so 
long  been  held  up  to  general  admiration.  The  Commercial  Code 
reproduced  the  Ordinance  almost  textually. 

This  Code  is  still  in  force,  and  maritime  law  has  consequently 
preserved  institutions  which  are  absolutely  peculiar  to  it.     To  cite 

397 


§  1]  PART   III      UNIFICATION    OF   LAW  [Chap.    XI 

a  few  merely  at  random :  registration  in  the  transfer  of  owner- 
ship of  vessels ;  contracts  of  seamen  and  the  protection  of  their 
wages ;  creditors'  right  to  proceed  "  in  rem  " ;  the  number  and 
rights  of  lien  creditors ;  coownership  of  vessels ;  rules  governing 
the  contract  of  affreightment  and  the  payment  of  freight ;  limited 
liability  of  the  ship-owner ;  the  rule  in  case  of  doubtful  responsi- 
bility for  a  collision  ;  general  average  ;  abandonment  in  the  law  of 
marine  insurance. 

Weakening  of  its  Distinctive  Character.  —  The  1800  s  saw  a  con- 
stant moderation  of  the  distinctive  character  of  maritime  law. 
This  was  due  at  once  to  juridical  and  to  economic  considerations. 
First  there  was  codification.  I  have  said  that  the  drafters  of  the 
Second  Book  of  the  French  Commercial  Code  followed  the  "  Ordi- 
nance "  very  closely.  It  was  none  the  less  true  that,  from  then 
onwards,  maritime  law  was  presented  as  a  part  of  commercial  law. 
It  was  severed  from  all  rules  not  affecting  the  relations  of  pure 
private  law,  and,  thus  mutilated,  it  became  difficult  to  interpret. 

Moreover,  who  was  to  interpret  it?  The  same  authors  who 
undertook  to  expound  the  Commercial  Code  as  a  whole.  And 
naturally  these  early  commentators  brought  to  their  task  their  own 
methods  of  reasoning  and  their  knowledge  of  the  Roman  law  or  of 
civil  legislation.  Thus,  unwittingly,  they  tortured  maritime  law 
and  deformed  its  most  original  institutions,  in  order  to  find  in 
them  instances  for  the  application  of  Roman  law. 

There  was  another  and  yet  graver  influence.  The  Revolution 
destroyed  the  courts  of  admiralty  which  had  had  jurisdiction  over 
maritime  causes.  The  determination  of  these  affairs  was  confided 
to  the  commercial  courts.  In  the  important  ports  the  maritime 
element  is  represented  upon  these  courts ;  elsewhere  it  is  the  small 
trader  who  sits  in  judgment.1  Moreover,  though  the  commercial 
court  is  a  special  jurisdiction,  it  only  sits  in  first  instance,  and  on 
appeal  we  come  again  within  the  ordinary  jurisdiction:  that  is, 
the  Courts  of  Appeal  and  the  Court  of  Cassation.  Judges  without 
special  knowledge  of  maritime  law  will  naturally  tend,  in  interpret- 
ing it,  to  use  methods  peculiar  to  the  apparatus  of  the  common  law. 

Lastly,  codification  destroyed  or  diminished  the  value  of  custom 

or  usage.     All  the  rules  of  the  law  arc  sought  in  the  statutes  :  when 

these  are  incomplete,  recourse  to  the  legislature  becomes  necessary. 

When  the  legislature  enacts  a  general  rule  it  applies  it  to  maritime 

1  [Tii  France  the  judges  of  the  commercial  courts  are  not  chosen  from  tho 
legal  profession,  or  even  those  having  a  legal  education,  but  from  an 
electoral  list  of  registered  merchants;  cf.  Law  of  Dec.  8,  1883,  Art.  8.  — 
Tbansl.] 

398 


Chap.   XI]  MARITIME  LAW  [§  1 

matters,  and  we  find,  for  example,  the  French  Law  of  February 
19,  1889,  applied  without  preliminary  discussion  to  marine  insur- 
ance, when  it  was  intended,  in  principle,  to  regulate  fire  insurance. 

The  Economic  Factor.  —  Economic  causes  aided  in  the  work  of 
unification,  brought  about  by  the  weakening  of  the  law's  individ- 
uality. The  shipping  industry  has  changed  in  character;  it  is  no 
longer  the  concern  of  a  few  cities  and  of  certain  classes  :  the  entire 
nation  is  interested. 

The  merchant  marine  is  no  longer  independent  of  commerce  by 
land  but  is  inseparably  related  to  all  the  national  resources.  All 
countries  may  aspire  to  possess  a  merchant  marine  if  their  national 
prosperity  is  great.  Geographical  situation  has  become  a  factor 
of  minor  importance  in  determining  preeminence  at  sea ;  the  eco- 
nomic situation  is  the  preponderant  factor.  A  port  cannot  survive 
unless  it  is  bound  by  arteries  both  by  land  and  river  to  the  territory 
lying  back  of  it ;  the  whole  commercial  movement  of  the  country 
and  of  the  bordering  nations,  must  flow  uninterruptedly  towards  the 
port.  The  products,  taken  at  their  place  of  origin,  mine,  foundry, 
and  factory,  are  forwarded  toward  their  destination  by  the  most 
divers  modes  ;  they  go  forth  in  search  of  markets  ever  more  distant. 
No  country  dares  ignore  the  foreign  peoples  reached  by  marine 
transportation.  The  whole  nation  is  interested  in  the  prosperity 
of  the  merchant  marine.1 

Influence  of  Civil  Law  on  Maritime  Law.  —  The  result  of  all  these 
influences  is  extremely  curious.  On  the  one  hand  maritime  law  is 
absorbing  rules  of  the  common  law,  and  on  the  other  hand  its 
influence  is  penetrating  the  civil  law,  through  a  generalization  of 
the  institutions  of  maritime  law  or  a  development  of  the  ideas 
which  originated  them. 

For  example,  maritime  law  for  a  long  while  utilized  an  instru- 
ment of  credit  wholly  original  to  it ;  the  bottomry  bond.  To-day 
this  no  longer  has  any  importance;  an  original  institution  has 
been  lost.  It  has  been  partially  replaced  by  the  marine  mortgage, 
an  illustration  of  the  penetration  of  maritime  law  by  the  civil  law  ; 
or,  again,  by  a  loan  made  upon  the  cargo,  which  is  also  a  practice 
of  trade  by  land.  So,  too,  the  old  coownership  of  vessels  is  dis- 
appearing, and  the  marine  company  is  taking  its  place,  borrowed 
from  the  institutions  of  land  commerce.  As  new  marine  contracts 
make  their  appearance  (towage  and  carriage  of  passengers),  the 

1  Marcel  Dubois,  "La  crise  maritime"  (1911),  has  demonstrated  very 
admirably  the  place  which  maritime  trade  must  hold  to-day  in  the  life 
of  the  nation,  and  the  present  opportunities  of  all  countries  in  maritime 
life,  regardless  of  their  geographic  location. 

399 


§  1]  PART   III      UNIFICATION    OF   LAW  [Chap.    XI 

rules  of  the  common  law  of  contracts  are  applied  to  them.  And 
finally,  as  has  already  been  said,  industrial  legislation  is  invading 
maritime  law,  — ■  decreeing,  for  example,  a  weekly  day  of  rest,  or  a 
maximum  period  of  work,  because  such  rules  exist  in  other  activities. 

Influence  of  Maritime  Law  on  Civil  Law.  — On  the  other  hand 
institutions,  formerly  peculiar  to  maritime  law,  have  passed  over 
into  the  common  law.  Under  the  pressure  of  practical  necessity, 
maritime  law  had  created  rules  of  its  own,  the  more  easily  accepted 
in  that  there  was  little  interest  in  reconciling  them  with  the  com- 
mon law.  To-day  the  field  of  these  distinctive  institutions  has 
singularly  increased.  Thus,  formerly,  marine  insurance  was  the 
only  form  of  insurance  known  :  to-day  all  or  nearly  all  risks  may  be 
insured.  So  also,  the  obligation,  imposed  upon  the  shipowner  of 
caring  for  seamen,  sick  or  wounded  in  the  service  of  the  ship,  was 
the  first  appearance  of  the  idea  of  industrial  risk,  which  has  now 
passed  into  civil  legislation  and  assures  indemnity  for  accidents 
incident  to  work.  Another  example  is  the  exemption  of  the  wages 
of  seamen  from  attachment.  This  no  longer  presents  anything 
exceptional.  Again,  obligatory  insurance  against  infirmities  has 
become  the  rule  common  to  all  workmen. 

Perhaps  this  penetration  of  common  law  by  maritime  law  is  not 
yet  at  an  end.  Some  day  it  will  be  seen  that  the  transfer  by  regis- 
tration is  more  perfect  than  the  transcription  of  the  land  record, 
or  that  the  conception  of  a  separation  of  the  estate  embarked  in 
commerce  may  give  good  results  for  all  classes  of  traders. 

We  must  add  that  when  a  movement  has  commenced,  it  carries 
within  itself  an  energy  which  hastens  its  progress.  It  is  the  need  of 
uniformity,  the  tendency  of  our  mind  to  force  all  institutions  within 
old  categories,  the  desire  to  have  a  fine  juridical  organism.  A 
nation  of  logicians,  like  France,  naturally  loves  this  regression  of  the 
commercial  law.1 

Revival  of  Individuality.  —  Lately,  however,  there  has  taken 
place  a  revival  of  the  individuality  of  maritime  law,  under  the 
influence  of  a  very  well  defined  cause.  As  maritime  law  merges 
into  the  general  common  law,  wider  variances  are  betrayed  in  this 
branch  of  legislation  of  the  different  countries.  If  we  are  to  arrive 
at  an  International  legislation,  we  must  begin  by  rooting  maritime 

1  Cf.  Thaller,  "De  L'attraetion  exercee  par  le  Code  civil  et  par  ses 
methodic  sur  l<>  droit  commercial"  ("  Havre  du  centenaire  du  Code  civil", 
Vol.  I,  ]>.  226).  Compare  Lyon-Caen,  "De  l'influence  du  droit  com- 
mercial but  1<'  droit  civil  depuis  1804"  (ibid.,  Vol.  I,  p.  207);    Laurent, 

"  La  fusion  du  droit  civil  et  du  droit  commercial"  (thesis,  University  of 
Paris,  1903). 

400 


Chap.  XI]  MARITIME  LAW  [§  2 

law  from  the  soil  in  which  it  has  been  planted  and  set  it  upon  the 
plane  of  an  independent  branch  of  knowledge.  In  the  conferences 
called  to  draft  such  legislation,  frequent  stress  was  laid  upon  the 
absolute  necessity  of  rejecting  all  the  legal  conceptions  imposed  by 
the  Roman  law  or  derived  from  private  law  in  general,  so  as  to 
adopt  solutions  justified  by  maritime  practice. 

Already  two  countries,  Belgium  and  Greece,  conforming  with  the 
aims  of  these  Congresses,  have  introduced  into  their  positive  law 
rules  which  owe  nothing  to  the  common  law,  which  have  been 
fashioned  wholly  in  view  of  the  benefit  to  the  interests  involved, 
and  as  a  basis  for  a  future  international  understanding.  Our  own 
legislation  has  not  yet  bent  to  this  influence.  But  it  may  be  fore- 
seen that  it  will  not  escape.  Already  the  French  delegates  have 
accepted  principles  which  are  in  complete  conflict  with  principles 
of  our  civil  law,  such,  for  example,  as  the  recognition  of  a  lien  in 
favor  of  the  victims  of  a  collision.  Moreover,  in  order  to  mark 
their  originality,  they  have  plainly  emphasized  (at  times  over- 
emphasized) rules  peculiar  to  maritime  law,  such  as  the  limitation 
of  the  liability  of  the  owner  to  the  amount  embarked  in  the  partic- 
ular marine  venture. 

This  reawakening  of  individuality  presents  some  dangers,  for 
it  is  artificial.  Certainly  we  should  not,  through  neglecting  the 
purposes  of  maritime  law,  incorporate  in  it  all  the  rules  of  the 
common  law.  But  it  would  also  be  dangerous  to  sever  it  too 
suddenly  from  the  general  body  of  our  law.  Its  originality  must  be 
maintained  with  great  discrimination.  It  is  preferable  that  the  com- 
mon law  adapt  itself  to  it  by  taking  account  of  the  differences  of 
conditions,  rather  than  create  arbitrarily,  by  the  resolution  of  a 
conference,  rules  which  have  never  been  tested,  whose  originality 
is  not  without  danger,  and  whose  indirect  effect  can  not  be  cal- 
culated.1 

§  2.  Traditionalism  and  Evolution.  —  The  remarkable  stability  of 
maritime  law  has  often  been  praised.  Pardessus,  describing  the 
evolution  of  this  law  through  the  ages  in  all  nations,  declared  : 
"  Independent  of  the  changes  which  the  centuries  bring,  or  of  the 
revolutions  and  barriers  produced  by  national  rivalries,  this  law, 
unchanging  amid  the  disruptions  of  society,  has  come  down  to  us 

1  Cf.  Gfutschow,  "Die  Reform  unci  Vereinheitlichung  des  Seereeht  dureh 
Ruckkehr  zum  allgemeinen  Frachrecht"  (Hamburg,  1911).  This  author 
also  criticizes  the  unification  of  maritime  law  through  mutual  concessions; 
but  above  all  he  attacks  the  revival  of  originality  in  maritime  law,  which, 
he  believes,  has  no  longer  any  reason  to  exist  separately;  he  demands  a 
single  law  for  transport  by  land  and  by  sea. 

401 


§  2]  PART   III      UNIFICATION    OF    LAW  [Chap.    XI 

after  thirty  centuries,  just  as  it  was,  when,  in  the  first  days  of 
navigation,  it  established  relations  between  peoples." 1  And 
recently  Danjon  has  written :  "It  has  traversed  the  ages  without 
growing  old."  2 

Nothing  could  be  more  inexact.  Fortunate  for  us  that  our 
maritime  law  does  not  date  thirty  centuries  back  !  There  has  been 
a  confusion  here  between  the  stability  and  the  individuality  of  the 
law.  It  is  true  that  the  ordinary  forces  of  legal  evolution  do  not 
touch  maritime  law.  It  is  not  concerned  with  moral  or  religious 
questions  or  of  varying  political  systems.  Ideas  and  habits  may 
change  without  its  being  affected.  It  lives  a  life  apart :  it  has  an 
aspect  peculiar  to  it. 

But  on  the  other  hand  economic  changes  affect  it  very  profoundly. 
If  the  conditions  of  commercial  navigation  are  revolutionized, 
so  is  maritime  law  also.  And  it  has  been  revolutionized  in  the 
deepest  sense. 

1  The  truth  is  that  the  change  has  been  very  recent.  "  Since  the 
day,"  says  Ambroise  Colin,  "  when  some  unknown  and  inventive 
mariner  discovered  the  art  of  making  a  sailing  ship  advance 
against  the  wind,  up  to  the  last  of  the  1700s,  nautical  art  made 
enormous  progress,  but  it  did  not  accomplish  a  revolution.  .  .  . 
If  we  imagine  a  companion  of  Nearchus  or  of  Vasco  da  Gama, 
magically  awakened  from  his  sleep  of  centuries,  and  transported 
aboard  a  ship  of  the  period  of  the  Restoration,  certainly  his 
admiration  would  be  boundless  at  the  progress  of  nautical  art,  but 
his  eyes  would  see  nothing  which  was  absolutely  incomprehen- 
sible to  him."  3  Thus  for  some  centuries  commercial  navigation 
followed  the  wandering  guidance  of  the  past.  Ships  grew  in  size ; 
voyages  were  lengthened  ;  but,  after  all,  these  were  gentle  enough 
changes.  Is  it  surprising  that,  along  its  broad  lines,  the  maritime 
law  of  the  1700  s  resembled  that  of  the  1300  s  and  1400  s? 

Recent  Transformations.  —  To-day  the  transformation  is  com- 
plete. Even  before  the  use  of  steam,  ships  had  reached  large 
dimensions.  The  application  of  a  new  method  of  propulsion,  and 
steel  construction,  still  more  increased  the  vessel  dimensions.  The 
demand  for  speed  and  the  luxury  of  appointments  required  enor- 
mous capital.  The  change  in  the  materials  brought  about  the  rev- 
olution in  the  manner  of  employment.  This  new  property  belongs 
to  a  few  great  companies  which  have  replaced  the  ship-owners  of 

1  Pardessus,  "Collection  des  lois  maritimes",  Vol.  I,  p.  2. 

2  Danjon,  "Droit  maritime",  Vol.  I,  no.  10,  p.  22. 

3  A.  Colin,  "La  navigation  commerciale  au  XIXe  siecle  ",  pp.  31,  32. 

402 


Chap.   XI]  maritime  LAW  [§  2 

old,  who  one  after  another  have  succumbed.  These  new  vessels 
carry  a  very  numerous  personnel,  who  are  not  exclusively  occupied 
with  the  navigation  of  the  ship.  Alongside  of  the  nautical  crew 
are  others  who  perform  a  general  service  and  constitute  a  civil 
crew.  These  receive  a  status.  The  number  of  officers  has  in- 
creased. The  functions  of  the  captain  have  changed.  At  each 
port  of  call  the  owner  maintains  an  agent  or  a  correspondent 
charged  with  the  care  of  his  commercial  operations.  Powerful 
steamers  transport  at  great  speed  a  very  varied  cargo,  belonging 
to  a  considerable  number  of  consignees. 

The  economic  conditions  of  transportation  have  been  wholly 
changed,  and  we  find  the  rules  of  law  changing  with  them.  Thus 
we  have  the  delivery  of  the  cargo  by  the  owner's  agent  to  the 
freighter's  agent  at  the  port  of  destination ;  payment  of  freight 
unconditionally  ;  clauses  of  non-liability  of  the  transporter  ;  sales 
of  the  cargo  while  on  voyage.  All  this  is  new  law.  The  new 
navigation  does  not  run  the  same  risks  as  the  old.  It  no  longer 
fears  piracy,  and  still  less  tempests  ;  but  collision  has  become  much 
more  frequent  and  dangerous,  and  hence  the  change  in  the  rules 
governing  collision  :  the  establishment  of  the  principle  of  obliga- 
tory salvage.  If  navigation  is  safer,  it  is  also  more  rapid ;  for 
commercial  operations  miist  be  accomplished  with  the  desired 
speed.  Negotiable  bills  of  lading,  insurance  for  the  account  of  a 
third  person,  "  floating  "  policies,  —  these  are  the  means  dis- 
covered by  modern  practice  to  safeguard  interests.  We  have  not 
the  time  to  discuss  them  at  length  here. 

These  few  remarks  suffice  to  make  clear  the  profound  trans- 
formation of  maritime  law.  Nothing  now  resembles  less  the 
undertakings  of  early  days  than  the  modern  employment  of  a 
ship  ;  nothing  so  differs  from  the  old  affreightment  than  our  modern 
contract  of  carriage  of  merchandise.  And  other  institutions,  such 
as  credit  and  insurance,  have  also  undergone  a  radical  evolution. 
All  have  had  to  adapt  themselves  to  the  modern  conditions  of 
navigation. 

Traditionalistic  Spirit.  —  Of  the  alleged  stability  of  maritime 
law,  one  feature,  however,  remains  true  which  should  be  per- 
petuated, and  that  is  the  traditionalistic  spirit  of  this  law,  due 
certainly  to  its  individuality.  Just  as  once  Roman  civil  law,  so 
to-day  maritime  law,  does  not  willingly  surrender  its  early  institu- 
tions, even  when  these  have  lost  their  justification.  It  possesses 
some  curious  survivals.  For  example,  the  change  in  the  mode  of 
employment  of  the  ship  and  the  creation  of  great  companies  still 

403 


§  2]  PART   III      UNIFICATION   OF   LAW  [Chap.    XI 

leave  us  the  coownership  of  vessels,  —  an  antiquated  form  of 
enterprise  in  common,  to-day  without  utility.  The  creation  of  the 
marine  mortgage,  a  new  form  of  credit,  has  left  surviving  the 
bottomry  bond,  which  no  longer  exists  except  in  the  literature  of  the 
law.  So,  also,  while  the  old  principle  of  association  of  interests 
between  master  and  shipper  weakens,  the  theory  of  general  average 
is  retained  and  applied  still  to-day,  though  insurance  has  robbed  it 
of  the  greater  part  of  its  practical  interest.1 

This  partial  retention  of  old  institutions  which  must  be  com- 
bined with  the  new  rules  gives  a  complexity  to  maritime  law,  not 
without  inconvenience.  There  are  rules  to-day  which  are  badly 
out  of  alignment.  And  yet  this  traditionalism  possesses  the 
advantage  of  avoiding  an  unfortunate  leap  towards  excessively 
brush  reforms. 

§  3.  Present  Tendencies  of  Maritime  Interests.  —  The  present 
trend  of  maritime  law  may  be  summed  up  in  two  principal  aims : 
to  assure  rapidity  and  to  gain  security  for  maritime  transportation. 
Transportation  by  sea  brings  together  numerous  parties  in  interest, 
but  the  terms  of  each  contract  are  not  discussed  singly  by  them. 
The  rules  are  almost  always  fixed  once  for  all  parties  and  for  all 
classes  of  transportation.  They  have  been  discussed  by  representa- 
tives of  those  interested,  who  are  all  in  close  association.  The 
great  shipping  companies  unite  through  mutual  agreements  and 
trusts,  or  simply  intrust  a  central  committee  of  owners  with  the 
defense  of  their  interests.  Ship-owners  are  to-day  powerful  com- 
panies who  debate  their  interests  in  conferences  and  form  perma- 
nent committees.  By  the  nature  of  things  the  freighters  remain 
more  isolated ;  yet  they  too  have  found  a  means  of  coming  together 
in  conferences,  and,  moreover,  their  assurers  undertake,  for  their 
account,  to  protect  their  interests. 

All  these  forces  do  not  act  with  the  same  aim.  But  all  have  the 
same  interest,  when  it  is  a  question  of  affording  greater  security 
and  rapidity  to  commercial  operations.  These  are  the  requisites 
of  marine  trade  to-day.  It  is  not  surprising  that  maritime  law 
has  made  every  effort  to  give  satisfaction  to  these  needs.2 

1  Upon  the  survival  in  maritime  law  of  conceptions  from  the  primitive 
penal  law  and  especially  of  private  punishment,  see  Hugueney,  "L'idee  de 
peine  privee  dans  le  droit  oontemporain ",  in  "  Revue  critique"  (19(H)), 
p.  410.  lie  cites  especially  as  survivals  of  t  his  idea,  Articles  297,  292,  240, 
V,:,~  of  the  Commercial  Code,  and  Articles  52  and  69  of  the  Law  of  April  15, 
1S9S,  relating  to  the  confiscation  of  the  wages  of  deserters  [which  modifies 
the  Decree-law  of  Mar.  24,  1852.  —  Transl.] 

'-'  [The  succeeding  §§  50-60  of  the  author's  chapter  may  be  thus  con- 
veniently summarized : 

404 


Chap.   XI]  MARITIME   LAW  [§  3 

Reconciliation  of  Security  and  Speed.  —  On  first  examination, 
these  two  aims,  security  and  speed,  seem  contradictory,  and  in 
this  there  is  a  certain  amount  of  truth.  To  be  able  to  proceed  in 
perfect  safety,  it  must  be  possible  to  calculate  the  risks  at  leisure. 

Nothing  is  more  interesting  than  the  manner  in  which  maritime 
law  has  reached  a  reconciliation  of  these  two  opposing  needs  of 
commercial  navigation.  The  ship  makes  as  frequent  voyages  as 
possible ;  even  its  destination  is  not  always  known  at  the  moment 
of  departure.  Consequently  the  "  time  "  policy  has  given  way 
to  the  "  voyage  "  policy,  and  it  is  now  contemplated  to  replace 
abandonment  in  specie,  which  is  rigid,  by  a  declaration  in  money 
value  of  the  interest  embarked.  The  merchandise  is  loaded  without 
previous  verification ;  special  clauses  of  the  bill  of  lading  provide 
a  mode  of  calculating  the  freight  and  of  fixing  the  liability  of  the 

Security.  Maritime  law  early  secured  the  ship-owner  against  the 
dangers  attending  his  occupation  by  a  division  and  displacement  of  the 
risks.  In  the  division  of  risk,  ship,  merchandise,  and  capital  were  con- 
tributed by  different  persons ;  the  ship  belonged  to  coowners,  among 
whom  the  crew  might  figure ;  vessels,  bound  to  the  same  port,  traveled 
together,  to  unite  against  dangers.  The  unity  of  interest  of  owner  and 
freighter  found  expression  in  the  doctrine  of  general  average ;  the  owner 
could  rid  himself  of  liability  for  the  captain's  acts  by  abandoning  ship  and 
freight.  The  risk  was  displaced  by  the  bottomry  bond  and  marine  insur- 
ance, which  transferred  it  to  another  through  an  aleatory  contract  upon 
consideration  of  an  immediate  sacrifice. 

To-day  the  ship-owner  has  approximated  entire  security.  Preventive 
measures  due  to  scientific  progress  have  greatly  reduced  most  dangers 
except  collision.  Tins  growing  peril  is  being  reduced  by  regulating  courses 
and  by  obligatory  salvage.  A  second  means  of  security  is  a  development 
of  the  division  of  risk  by  the  introduction  of  the  stock  company  as  owner. 
The  third  means  is  the  limitation  of  liability.  The  owner's  liability  to 
third  persons  is  restricted  to  the  ship  and  freight,  and  he  is  liberated  by 
abandonment ;  toward  the  freighter  he  secures  immunity  by  a  clause  in 
the  bill  of  lading ;  his  obligations  to  the  seamen  are  covered  by  obligatory 
insurance.     Meanwhile  the  doctrine  of  general  average  survives. 

Different  from  the  early  displacement  of  risk,  modern  marine  insurance 
covers  the  full  value  of  both  ship  and  cargo.  The  insurer  survives  a  crisis 
because  of  the  number  and  variety  of  risks,  the  vast  capital  employed,  and 
the  practice  of  reinsurance.  Bottomry  and  general  average  have  grown 
less  important. 

Rapidity.  The  vast  capital  invested  requires  intensive  employment  and 
rapidity  of  operation.  To  meet  this  demand,  maritime  law  early  mini- 
mized the  possibility  of  conflict  by  requiring  contracts  to  be  in  writing, 
exacting  rigorous  conditions  of  recovery  at  law,  adopting  short  periods  of 
prescription,  introducing  derogations  of  the  law  of  agency,  liquidating 
damages  for  breach  of  the  contracts  with  seamen,  of  affreightment  or 
insurance.     Practice  has  been  somewhat  modernized. 

To  the  same  end  the  marine  broker  has  been  substituted  by  the  owner's, 
the  freighter's,  and  the  insurer's  agents,  stationed  at  the  port  of  destina- 
tion and  enjoying  new  powers.  The  charter-party  is  no  longer  written; 
the  bill  of  lading  is  not  drawn  in  duplicates  and  need  not  be  signed  by  all 
parties;  the  shipping-agent  undertakes  to  transport  by  varied  means. 
The  negotiable  bill  of  lading  permits  the  sale  or  pledge  of  the  cargo  in 
route ;  while  the  cargo  procures  the  needed  credit  to  the  consignor  or 
consignee.  —  Transl.] 

405 


§  3]  PART   III      UNIFICATION    OF   LAW  [Chap.    XI 

carrier.  There  is  no  time  to  insure  the  goods  specifically;  but 
this  is  of  no  consequence,  for  the  goods  travel  subject  to  the  terms 
of  a  "  floating  "  policy,  which  covers  at  once  all  the  merchandise 
which  can  be  loaded. 

So  marine  operations  have  taken  on  a  special  character  which 
may  be  termed  automatic.  The  spirit  of  adventure  is  no  longer 
necessary  to  try  one's  fortune  at  sea.  On  the  contrary,  what  is 
needed  is  a  mathematical  mind.  There  has  been  an  industrializa- 
tion of  marine  commerce,  and  the  law  has  naturally  bent  to  meet 
this  evolution.  It  has  furnished  navigation  with  the  means  of 
realizing  it.  It  has  made  possible  the  calculation  and  insurance  of 
risks  amid  an  astounding  rapidity  of  complex  operations. 

§  4.  History  of  Unification  of  Maritime  Law.  —  The  exact 
calculation  of  risks  and  liabilities  encounters  a  serious  obstacle 
in  the  diversities  of  legislation.  It  is  impossible  to  know  in  ad- 
vance what  law  will  govern  the  difficulties  arising  out  of  marine 
operations.  The  owner,  the  shipper,  the  insurer,  are  exposed, 
through  the  risks  of  navigation,  to  foreign  law.  We  have  explained 
how  such  conflicts,  which  were  formerly  relatively  rare,  are  becom- 
ing to-day,  and  will  become  in  the  future,  more  and  more  frequent ; 
how  the  number  of  conflicting  laws  tends  to  increase ;  and  why  it 
has  not  been  possible  to  propose  the  adoption  of  a  uniform  rule 
(the  law  of  the  flag  or  other  law)  to  provide  a  solution  which  could 
be  anticipated.  Even  could  we  fix  by  agreement  the  law  to  be 
applied,  the  result  sought  would  not  be  obtained,  because  all  the 
interested  parties  could  not  in  advance  come  to  a  determination 
of  the  law  applicable.  The  evil  appears  the  greater  as  the  desire 
for  security  becomes  more  pressing ;  and  it  has  been  thought  that 
the  situation  might  be  remedied  by  an  international  unification  of 
maritime  law. 

Early  Uniformity.  —  It  has  often  been  remarked  that  this 
unification  would  be  a  return  to  the  early  practice  of  the  Middle 
Ages.  There  did,  indeed,  exist  formerly  a  certain  uniformity  of 
maritime  usage.  The  navigators  of  every  country,  escaping  as 
they  did  the  wretched  treatment  accorded  foreigners  on  land,  and 
accustomed  to  voyage  in  company,  could  not  subject  themselves 
successively  to  all  the  laws  of  the  ports  which  they  frequented. 
Usages  grew  up  (the  sole  source  of  law)  which  commanded  respect 
in  all  the  neighboring  countries.  There  was  a  "  lex  maris  ",  a 
"  bonne  coutume  de  la  mer." 

The  usages  laid  down  in  the  "  Consolato  del  Mare  "  were  fol- 
lowed in  Provence  and  Spain  and  in  the  Italian  cities.     Provencal 

406 


Chap.  XI]  maritime  law  [§  4 

and  Catalan  were  brothers  in  race  and  language ;  the  decisions  of 
the  Consuls  of  Barcelona  were  cited  at  Marseilles.  The  usages 
contained  in  the  Laws  of  Oleron  applied  in  the  Bay  of  Biscay,  the 
English  Channel,  the  North  Sea.  A  manuscript  of  the  Laws  of 
Oleron  relates  that  the  rules  were  observed  at  Bordeaux,  in  Eng- 
land, Brittany,  Normandy,  Scotland,  and  Prussia.  They  were 
even  applied  in  Spain  (for  we  possess  a  manuscript  in  Castilian)  and 
in  the  Scandinavian  countries  (whose  compilations  of  usages  were 
copies). 

Thus,  in  spite  of  the  diversity  of  customs,  the  multiplicity  of 
independent  cities  and  states  and  the  hardships  of  the  law  toward 
foreigners,  maritime  law  was  born  and  developed. 

Forces  against  Uniformity.  —  Uniformity  received  its  first  blow 
from  the  development  of  the  municipal  statutes.  The  day  when 
local  authority  or  a  corporate  body  was  strong  enough  to  impose 
its  rules,  it  rendered  subject  to  them  only  its  citizens  or  members, 
and  diversity  made  its  appearance.  Thus,  beginning  in  the  1300  s, 
the  Hanseatic  League  substituted  for  common  usages  its  enactments 
("  recessi  "),  at  first  very  brief,  but  later  more  and  more  com- 
plete ;  it  imposed  its  own  regulations  on  all  its  members  and  estab- 
lished courts  which  applied  only  its  laws.  The  restricted  com- 
munity which  it  found  among  a  few  cities  substituted  a  gild  law 
for  the  common  law  of  the  sea. 

There  was  even  greater  reason  why  common  maritime  usage 
should  have  been  thrust  back  by  the  national  legislation.  The 
day  when  Charles  V  or  Philip  II  adopted  ordinances  to  govern 
marine  matters,  various  considerations  came  into  play,  giving  to 
such  rides  a  national  character  and  preventing  their  imitation  or 
multiplication.  Uniformity  within  the  kingdom  was  obtained  at 
the  expense  of  general  uniformity.  In  France  the  Marine  Ordi- 
nance of  1681  procured  the  great  benefit  of  fixing  for  the  whole 
kingdom  the  maritime  usages  followed  until  that  time ;  but  it 
necessarily  imparted  to  international  custom  a  national  character. 

In  spite,  however,  of  national  legislation,  maritime  law  preserved 
a  certain  uniformity  up  to  the  1600  s  and  1700  s.  The  reason  was 
that  at  first  the  national  ordinances  were  often  no  more  than  com- 
pilations of  ancient  usages,  common  to  several  peoples.  The 
Ordinance  of  1681  very  clearly  presents  this  character.  We  must 
also  consider  the  international  influence  which  the  Ordinance  of 
1681  exerted.  Its  legislative  value  and  the  supremacy  of  France 
under  Louis  XIV  caused  its  adoption  as  the  common  law  of  mari- 
time Europe.     And,  lastly,  the  force  of  tradition  and  the  influence 

407 


§  4]  PART  III      UNIFICATION   OP  LAW  [Chap.   XI 

of  jurists  contributed  to  preserve  unity.  Interpreters  of  the 
Marine  Ordinance  continued  to  cite  the  early  maritime  usages  and 
the  rules  observed  abroad. 

Codification.  —  But  codification  was  destined  to  cause  the  defi- 
nite disappearance  of  uniformity.  While  defended  in  the  name  of 
legislative  unity,  it  was  to  produce  in  maritime  law  the  curious 
result  of  causing  diversity. 

This  movement  was  very  marked  in  the  1800  s.  In  the  first 
half  of  the  century,  the  French  Code,  modeled  on  the  Marine 
Ordinance  of  1681,  was  adopted  in  a  great  number  of  countries 
whose  usages  it  translated ;  or  else  it  was  imposed  by  imperial 
conquest.  But  Great  Britain  already  had  a  different  law.  In  1861 
Germany  drafted  its  Commercial  Code  and  escaped  from  Latin 
influence  ;  in  1897  it  revised  this  Code  and  drew  still  further  away 
from  French  law.  In  the  last  twenty  years  Italy  and  Spain  have 
revised  their  Codes,  giving  them  a  national  stamp  and  borrowing 
in  part  from  the  German  legislation.  These  revisions  carried  along 
with  them  the  countries  under  Italian  and  Spanish  influence. 
Then  new  countries  were  born  to  maritime  history ;  the  United 
States  and  Japan.  They  have  their  own  legislation,  often  con- 
structed from  various  borrowed  sources.  And  in  the  first  years  of 
the  1900  s  Belgium  and  Greece  reformed  their  antiquated  codes 
upon  new  principles. 

Un justifiability  of  Diversity.  —  Thus  codification  has  caused 
diversity.  And  yet  this  diversity  has  no  very  good  justification  in 
maritime  law.  Variances  in  national  civil  legislation  are  explained 
and  justified  by  the  fact  that  such  legislation  reflects  the  religion, 
customs,  traditions,  political  system,  and  the  economic  situation 
of  a  country.  Nothing  of  this  sort  is  true  in  maritime  law.  This 
law  governs  property  which  is  everywhere  similar,  and  of  like 
value,  and,  moreover,  constantly  being  moved  from  place  to  place ; 
men,  who  are  everywhere  engaged  in  carrying  on  the  same  occupa- 
tions in  an  identical  way,  and  in  a  certain  sense  separated  off  from 
the  rest  of  humanity ;  contracts  which  answer  like  needs,  are 
executed  in  the  same  manner,  bring  into  action  persons  from  every 
country  ;  and  finally,  risks,  which  arise  for  everyone  with  the  same 
frequency  and  demand  similar  indemnity. 

"  Uniformity,"  wrote  Pardessus  a  long  time  ago,  "  is  of  the 
essence  of  maritime  law.  While  civil  laws  are  closely  bound  to 
the  nature  of  the  government,  customs,  and  habits  of  the  country, 
the  same  is  not  true  of  the  laws  of  marine  commerce.  These  laws, 
growing  everywhere  out  of  similar  needs,  receive  from  this  very 

408 


Chap.   XI]  MARITIME  LAW  [§  5 

circumstance  a  character  of  universality  which  makes  it  possible  to 
apply  to  them  what  Cicero  so  well  said  of  natural  law :  '  non 
opinione  sed  natura,  jus  constitutum.'  And  as  they  interest  the 
whole  world,  over  which  navigators  form,  so  to  speak,  a  single 
family,  their  spirit  can  not  change  with  the  boundaries  of  nations. 
The  worst  civil  code  would  be  one  destined  for  all  nations  without 
distinction ;  the  worst  maritime  code  would  be  one  dictated  by 
special  interests  or  the  particular  influence  of  the  customs  of  a 
single  people."  *  More  recently,  Beirnaert  said,  in  opening  the 
Liverpool  Conference :  "  The  ocean  must  know  but  one  and  the 
same  law  throughout  all  its  latitudes."  2 

Diversity  of  Economic  Interest.  —  There  was  a  certain  exaggera- 
tion in  this,  which  was  clearly  felt.  In  effect,  in  this  desire  for 
uniformity,  we  forget  to  take  into  account  one  factor,  the  economic 
interest  of  a  country.  The  interest  which  this  influence  exercises 
on  civil  law  is  recognized  ;  how  much  greater  then  is  it  upon  mari- 
time law  since  it  is  the  only  one  controlling  ?  It  is  pure  theory  to 
affirm  that  all  peoples  have  the  same  interest,  and  should,  therefore, 
have  the  same  laws.  Their  situation  is  too  profoundly  different 
for  them  to  accept  similar  rules.  Marine  commerce,  I  have 
already  said,  is  an  effective  means  of  domination  in  international 
competition.  The  tariff  regime,  enforced  to-day  by  all  nations, 
can  with  difficulty  be  reconciled  with  international  uniformity  of 
law. 

This  diversity  of  interests  has  been  so  emphatically  manifested  in 
the  international  conferences  that  it  may  be  asked  if  it  will  not  ex- 
clude all  mutual  agreement.3  But  such  a  conclusion  would  be  over- 
pessimistic.  There  are  a  certain  number  of  questions  upon  which 
agreement  is  possible.  Wherever  legislation  differs  merely  upon 
purely  legal  principles,  unity  will  be  possible.  But  wherever 
opposed  interests  are  evident,  it  will  be  difficult  to  disarm 
them. 

§  5.  Methods  of  Unification.  —  The  means  employed  to  bring 
about  the  unification  of  maritime  law  are  numerous.4 

1  Pardessus,  "Collection  des  lois  maritimes  ",  Vol.  I,  p.  2.  Cf.  De  Courcy, 
"Questions  de  droit  maritime",  Vol.  I,  preface,  p.  5. 

2  "Bulletin  du  Comite  maritime  international"  (1905),  No.  12,  p.  103. 

3  For  example,  France  is  hostile  to  the  extension  of  the  principle  of  the 
liability  of  owners ;  the  United  States  refuses  to  do  away  with  the  lien  for 
supplies  and  repairs ;  Great  Britain  has  been  unwilling  to  abandon  the 
hen  in  the  case  of  damage  through  collision ;  etc. 

4  Pillet,  "Projet  de  loi  conventionnel  uniforme  en  matiere  de  lettre  de 
change  et  de  billet  a  ordre"  (Hague  Conference,  June  20-July  25,  1910), 
in  Clunefs  "Journal  de  droit  international  prive"  (1911),  p.3  85;  Gali- 
bourg, " L'Unification  du  droit  maritime"  (Angers,  l9l2). 

409 


§  5]  PART   III      UNIFICATION   OF   LAW  [Chap.    XI 

1.  The  simplest  and  most  practical  is  the  adoption  by  mutual 
agreement  upon  a  general  custom  as  a  substitute  for  the  rule  of 
national  law.  Wherever  derogation  of  the  written  law  is  permitted, 
it  is  possible  to  arrive  by  agreement  at  a  uniform  rule.  This  is  a 
return  to  the  common  usage  of  the  trade,  in  preference  to  the  rule 
of  the  Code.  Doubtless  a  formal  agreement  is  necessary;  but 
such  clauses  very  soon  become  matters  of  course.  Thus,  in  the 
great  majority  of  countries  to-day,  the  insertion  of  the  negligence 
clause  in  bills  of  lading  liberates  the  carrier  from  liability  for  the 
acts  of  his  agents,  in  spite  of  the  words  of  the  law.  Again,  in 
almost  all  contracts  of  carriage,  the  freight  is  stipulated  as  owed 
in  any  eventuality.  So  almost  everywhere  the  insurance  policy 
contains  very  similar  rules.  Identity  of  interests  brings  with  it 
uniformity  of  contracts. 

It  is  possible  to  extend  this  field  of  contractual  rule.  The  group- 
ing of  the  parties  in  interest  makes  it  possible  to  arrive  easily  at 
an  understanding.  In  London,  in  1893,  the  effort  was  made  to 
create  a  common  model  for  the  contract  of  affreightment;  at 
Glasgow,  in  1901,  a  type  of  insurance  policy.1  These  attempts, 
however,  were  unsuccessful.  On  the  other  hand,  the  International 
Law  Association  in  its  Congresses  of  York  in  1864,  and  of  Antwerp 
in  1877,  elaborated  for  the  subject  of  general  average  the  York- 
Antwerp  Rules,  which,  in  a  great  number  of  countries,  have  been 
substituted  in  practice  for  the  legislative  rules.2 

This  voluntary  acceptance  of  a  rule  presents  great  advantages ; 
but  it  only  permits  of  uniformity  if  no  mandatory  law  within  the 
State  conflicts. 

2.  Common  International  Law.  —  The  adoption  of  an  inter- 
national rule  breaks  down  the  resistance  of  mandatory  national 
law.  If  it  is  adopted  by  international  convention,  there  obtain  in 
each  country  two  sets  of  rules,  the  national  law  applicable  to 
nationals,  and  international  rules  applicable  whenever  one  of  the 
parties  is  a  citizen  of  one  of  the  contracting  States.  As  to  citizens 
of  other  States,  the  ordinary  rules  of  the  conflict  of  laws  are 
applied. 

The  Diplomatic  Conference  of  Brussels  contented  itself  with  this 
method  of  unification.  It  presents,  however,  serious  difficulties.3 
To  determine  when  the  international  rule  is  the  proper  law,  is  very 

1  The  conferences  were  held  by  the  "International  Law  Association." 

2  [See  Chapter  X,  ante.  —  Ed.] 

"'  Henri  Ripert,  " L'unification  du  droit  maritime  ct  la  Conference 
diplomatique  de  Bruxelles"  (thesis,  University  of  Aix,  1911). 

410 


Chap.  XI]  MARITIME  law  [§  5 

difficult.  The  nationality  of  the  vessel  was  made  the  test ;  but 
the  shipper  and  the  shipowners  of  a  contracting  country,  or  third 
persons  injured  in  an  accident  occurring  in  the  territorial  waters  of 
a  contracting  country,  through  the  act  of  a  citizen  of  a  non-con- 
tracting country,  should  be  able  to  look  to  the  international  rule. 
Moreover,  it  involves  numerous  complications.  In  the  same 
litigation  it  is  necessary  to  apply  the  international  rule  to  citizens 
of  contracting  countries,  reserving  to  the  others  the  rule  of  con- 
flict of  laws.  Lastly,  such  a  superposition  of  different  rules  in  the 
same  country  necessarily  raises  a  suspicion  as  to  the  value  of  one 
or  the  other. 

3.  Uniformity  of  National  Legislation  would  evidently  be  the  ideal 
method.  The  Conference  of  Brussels  recommended  this  method, 
but  did  not  venture  to  prescribe  it.1  The  international  con- 
vention, by  this  method,  becomes  the  model  which  each  national 
legislature  is  to  follow.  This  method  seems  to  me  the  most  prac- 
tical. A  country  has  no  excuse  for  denying  as  the  national  rule 
what  it  accepts  as  the  international  rule.  Belgium  and  Greece 
have  entered  upon  this  view,  modifying  their  maritime  laws  in 
conformity  with  the  international  resolutions. 

We  should  not,  however,  imagine  that  the  adoption  of  this 
method  is  without  difficulty.  Aside  from  the  dangers  presented 
by  a  fluctuation  of  domestic  law  at  the  whim  of  diplomatic  ex- 
pediency,2 and  from  the  constitutional  difficulty  of  voting  a  law 
similar  to  the  treaty,3  even  the  adoption  of  uniform  national  laws 
could  not  bring  about  a  complete  uniformity  of  law.  The  truth 
is  that  we  must  reckon  with  judicial  interpretation.  A  written  law 
can  neither  foresee  everything,  nor  foresee  anything  clearly.  The 
same  law,  interpreted  in  different  countries  by  judges,  learned  in 
their  own  national  law,  imbued  with  their  own  national  traditions 
and  habits,  and  using  their  own  juristic  methods,  will  appear  very 

1  The  international  convention  for  the  protection  of  submarine  cables, 
and  the  convention  for  the  regulation  of  fishing  rights  in  the  North  Sea, 
stipulated  an  obligation  upon  the  different  governments  to  secure  the 
passage  of  national  laws  conforming  to  the  convention  within  the  period 
of  a  year.  In  the  same  way,  the  draft  of  a  convention  upon  bills  of 
exchange,  voted  at  the  Hague  in  1911  (Art.  1,  §  1),  indicates  that  the 
Governments  bind  themselves  to  adopt  a  law  upon  the  bill  of  exchange, 
annexed  to  the  convention,  and  to  put  it  in  force  at  the  same  time  as  the 
convention. 

2  Belgium,  by  its  legislative  reform  of  1908,  adopted  rules  accepted 
by  the  Conference  of  Brussels  of  1905 ;  but  these  international  rules  have 
been  modified ;  Belgian  legislation  must,  therefore,  be  revised  again. 
An  international  convention  never  remains  as  adopted  for  more  than  a  few 
years.     That  is  a  short  period  for  the  life  of  a  law. 

3  Pillet,  ibid.,  CluneVs  "Journal",  etc.,  supra  (1911),  no.  391. 

411 


§  5]  PART   III      UNIFICATION    OF   LAW  [Chap.    XI 

different  at  the  end  of  a  few  years.  So  true  is  this  that  it  has  even 
been  thought  advisable  to  create  an  international  jurisdiction  for 
the  application  of  this  international  law.  But,  obviously,  recourse 
to  this  sort  of  High  Court  could  only  be  exceptional.  Perhaps 
the  inconvenience  of  divergent  interpretation  would  be  reduced, 
did  there  exist  in  each  country  a  special  jurisdiction  charged  with 
the  settlement  of  marine  causes.  I  see  no  means  of  making  it 
disappear  entirely. 

§  6.  Modern  Attempts  at  Unification.  —  In  spite  of  these 
difficulties,  the  labor  of  unification  has  been  very  energetically 
pursued  these  last  years. 

We  must  mention  first,  in  this  regard,  the  work  of  the  Inter- 
national Law  Association,  which  in  numerous  meetings  has  dis- 
cussed problems  of  maritime  law.1 

The  Antwerp  Conference  of  18S5  on  Commercial  Law  proposed, 
along  with  a  uniform  rule  of  conflict  of  laws,  a  draft  of  international 
maritime  legislation.2  The  Congress  of  Brussels  of  1888  resumed 
the  study  of  the  same  questions.3  Both  failed,  by  having  under- 
taken too  vast  a  program  at  sessions  which  were  too  brief.4  The 
Congress  of  Genoa  of  1892,5  which  met  on  the  occasion  of  the 
Columbus  celebration,  gave  no  positive  results  of  a  more  serious 
nature.  In  1897  Belgium,  which  is  well  situated  to  suffer  from 
the  diversity  of  maritime  law,  undertook  an  enduring  effort  toward 
unification.  MM.  L.  Franck  and  Ch.  Lejeune  founded  at  Antwerp 
the  "  Comite  Maritime  International  "  under  the  presidency  of 
M.  Beirnaert,  President  of  the  Belgian  Council  of  State.  This 
Committee  constitutes  a  permanent  body,  serving  to  link  together 
the  national  associations  existing  in  every  country.  The  "  Asso- 
ciation Francaise  de  Droit  Maritime  "  was  created  the  same  year 

1  Brussels  (1895),  on  collision,  cf.  "Revue  internationale  du  droit 
maritime",  Vol.  XI,  pp.  393  and  536.  York  (1864),  Antwerp  (1877), 
Liverpool  (1890),  Antwerp  (1903),  on  general  average,  ibid.,  Vol.  XIX, 
792.  Budapest  (1908),  on  effects  of  a  strike.  London  (1910),  on  liability 
of  shipowners,  ibid.,  XXVI,  407. 

2  (Sept.  27  to  Oct.  3) ;  cf.  "Actes  officiels  du  Congres"  (Brussels,  Lar- 
cier;  Paris,  Pedone ;  1885);  Clunet's  "Journal",  etc.,  supra  (1885), 
p.  593 ;   "Revue  internationale  du  droit  maritime",  Vol.  I,  p.  134. 

3  (Sept.  30  to  Oct.  6);  cf.  "Actes  officiels  du  Congres"  (Brussels, 
Larcier;  Paris,  Pedone;  1888);  "Revue  internationale  du  droit  mari- 
time", Vol.  IV,  p.  369. 

4  Especially  since,  in  addition  to  maritime  law,  certain  questions  of 
commerce  by  land  were  discussed,  notably  the  unification  of  the  law  of 
negotiable  instruments. 

5  Cf.  "Revue  internationale  du  droit  maritime",  Vol.  VII,  p.  383; 
Clunet's  "Journal",  etc.,  supra  (1893),  p.  79:  "Annales  de  droit  com- 
mercial" (1892),  pp.  2,  156;  "Bulletin  de  la  Societe  de  legislation  com- 
pared "  (1893),  p.  81. 

412 


Chap.   XI]  MARITIME  LAW  [§  6 

through  the  initiative  of  MM.  Autran  and  Verneaux.  To-day 
there  is  a  national  Association  of  Maritime  Law  in  twenty-one 
countries.  Each  problem  is  studied  in  the  national  association, 
later  in  the  conferences  held  by  the  committees,  and  often  by  com- 
mittees meeting  in  the  interim  between  the  conferences.  It  is 
reconsidered  many  times,  with  the  result  that  an  understanding 
is  reached  much  more  by  common  conviction  than  by  a  vote  which 
tends  to  divide  opinion. 

The  labors  of  the  "  Comite  Maritime  International  "  are  con- 
siderable.1   Following  is  a  list  of  the  meetings  and  subjects  treated  : 

1.  Brussels  Conference  (1897)  :   collision  and  salvage.2 

2.  Antwerp  Conference  (1898) :  collision  and  salvage,  liability 
of  shipowners.3 

3.  London  Conference  (1899) :  same  subjects.4 

4.  Paris  Conference  (1900) :  same  subjects.5 

5.  Hamburg  Conference  (1902) :  salvage,  jurisdiction  in  ques- 
tions of  collision,  liens,  and  mortgages.6 

6.  Amsterdam  Conference  (1904) :    same  subjects.7 

7.  Liverpool  Conference  (1905) :  liability  of  shipowners,  liens, 
and  mortgages.8 

1  General  bibliography:  R.  Verneaux,  "Les  premiers  travaux  de  l'as- 
sociation  francaise  de  droit  maritime",  Clunet's  "Journal",  etc.,  supra 
(1898),  p.  277;  "Travaux  et  resultats  relatifs  a  l'unincation  du  droit 
maritime  de  1897  a  1907",  ibid.  (1908),  p.  56;  "L'unincation  du  droit 
maritime",  in  "  Revue  politique  et  parlementaire "  (Sept.  1911) ;  Yseux, 
"Le  Comite  maritime  international",  Clunet's  "Journal",  etc.  supra  (1898), 
p.  273;  Hennebicq,  "Les  derniers  travaux  du  Comite  maritime  interna- 
tional", in  "Revue  economique  international"  (Aug.  1906);  Govare, 
"Etudes  sur  les  tentatives faites  en  vue  de  l'unincation  du  droit  maritime ", 
in  "Revue du  droit  international  prive  et  du  droit  criminel"  (1905),  p.  593  ; 
cf.  also:  "Bulletin  du  Comite  maritime  international";  "Bulletin  de 
l'association  francaise  de  droit  maritime"  ;  "  Annales  de  droit  commercial" 
(1898),  p.  332,  and  (1900),  p.  251. 

2  "Bulletin  du  Comite  maritime  international",  no.  1;  "Revue  inter- 
nationale  du  droit  maritime",  Vol.  XIII,  p.  496. 

3  "Bulletin  du  Comite  maritime  international",  nos.  2-5;  "Revue  in- 
ternationale  du  droit  maritime  ",  Vol.  XIV,  p.  427. 

4  "Bulletin  du  Comite  maritime  international",  no.  6;  "Revue  in- 
ternationale  du  droit  maritime",  Vol.  XV,  p.  275. 

5  "Bulletin  du  Comite  maritime  international",  nos.  7-9;  "Revue 
internationale  du  droit  maritime",  Vol.  XVI,  p.  276  (Marais). 

6  "Bulletin  du  Comite  maritime  international",  no.  10;  "Revue 
internationale  du  droit  maritime ",  Vol.  XVIII,  p.  328  (Fromageot) ; 
Clunet's  "Journal",  etc.,  supra  (1903),  p.  568. 

7  "Bulletin  du  Comite  maritime  international",  no.  11;  "Revue  in- 
ternationale du  droit  maritime  ",  Vols.  XIX,  p.  628 ;  XX,  pp.  473  and  807  ; 
XXI,  p.  146  {Verneaux);  Clunet's  "Journal",  etc.,  supra  (1905),  p.  766; 
"Annales  de  droit  commercial"  (1904),  p.  325. 

8  "Bulletin  du  Comite  maritime  international",  no.  12;  "Revue 
internationale  du  droit  maritime  ",  Vol.  XXI,  p.  249  (G.  Marais)  ;  Clunet's 
"Journal",  etc.,  supra  (1905),  p.  1159. 

413 


§  6]  PART   III      UNIFICATION    OF    LAW  [Chap.    XI 

8.  Venice  Conference  (1907) :  same  subjects,  conflict  of  laws  on 
the  subject  of  freight.1 

9.  Bremen  Conference  (1909) :  conflict  of  laws  on  the  subject 
of  freight,  liability  in  cases  of  accidents  to  persons.2 

10.  Paris  Conference  (1911) :    same  subjects.3 

Official  Action. —  The  work  of  the  "  Comite  Maritime  Inter- 
national "  was  such  that  it  had  necessarily  to  be  followed  up  by 
official  action.  The  Diplomatic  Conference  of  Brussels  brought 
together  official  delegates  of  the  different  Governments,  with  a 
view  to  adopt  a  convention  embodying  an  international  law. 

The  first  session  (February  21-26,  1905)  represented  only  thir- 
teen governments ;  the  two  most  important  maritime  powers  re- 
frained from  sending  delegates.  It  was  impossible  to  undertake 
more  than  a  brief  study  of  the  draft  on  the  subject  of  collision  and 
salvage.4  The  second  session  (October  16,  1905)  found  addi- 
tionally the  delegates  of  England  and  Germany  present,  and 
recommenced  the  study  of  the  draft.5  The  third  session  (Sep- 
tember 28,  1909),  brought  together  the  delegates  of  twenty-six 
Governments.  New  drafts  were  taken  up  on  the  limitation  of 
the  liability  of  the  shipowner,  mortgage,  and  marine  liens.6 
Finally,  the  fourth  session  (September,  1910)  reached  a  vote  on 
the  two  conventions  upon  collision  and  salvage,  and  took  up 
again  the  study  begun  on  the  other  subjects  in  1909.7 

1  "Bulletin  du  Comite  maritime  international",  nos.  13  to  19;  "Revue 
internationale  du  droit  maritime  ",  Vol.  XXIII,  pp.  556  and  715  (Barbey) ; 
Clunet's  "Journal",  etc.,  supra  (1909),  p.  310;  "Annales  de  droit  com- 
mercial" (1908),  p.  65;  "Revue  de  droit  international  prive,  etc."  (1907), 
p.  385. 

2  "Bulletin  du  Comite  maritime  international",  nos.  20  to  24;  "Revue 
international  du  droit  maritime  ",  Vol.  XXIV,  p.  692  (report  of  the  Paris 
Commission);  XXV,  p.  283  (Austran  and  Gautier);  "Annales  de  droit 
commercial"  (1910),  p.  172. 

3  "Bulletin  du  Comite  maritime  international",  nos.  25  et  seq.;  "Revue 
internationale  du  droit  maritime",  Vol.  XXVII,  p.  406  (Gautier); 
"Annales  de  droit  commercial"  (1912),  p.  251  (Ripert). 

4  "Bulletin  du  comite  maritime  international",  no.  12,  p.  V;  "Revue 
internationale  du  droit  maritime  ",  Vol.  XX,  p.  657. 

5  "  Revue  internationale  du  droit  maritime  ",  Vol.  XXI,  p.  270  ;  Clunet's 
"Journal",  etc.,  supra  (1907),  p.  273  (Franck) ;  "Revue  du  droit  interna- 
tional prive  ",  etc.  (1905),  p.  593  (Govare) ;  "Annales  de  droit  commercial" 
(190G),  p.  258. 

6  "Revue  internationale  du  droit  maritime",  Vol.  XXV,  p.  702; 
"Annales  de  droit  commercial"  (1910),  p.  172. 

7  "Revue  internationale  du  droit  maritime",  Vol.  XXVI,  p.  42  (Franck) ; 
"Annales  de  droit  commercial"  (1910),  p.  488,  and  .(1911),  p.  312 
(G.  Ripert);  "Bulletin  de  l'Association  francaise  du  droit  maritime" 
(1911),  nos.  47,  48,  and  50;  "Revue  de  droit  international  prive",  etc. 
(1912),  p.  169;  Lyon-Caen,  "De  l'unification  des  lois  maritimes",  in 
"  Bulletin  de  l'Academie  des  sciences  morales  et  politiques"  (1910),  p.  469 ; 
Henri  Ripert,  "Les  conventions  de  Bruxelles  et  l'unification  du  droit 
maritime"  (thesis,  University  of  Aix,  1911). 

414 


Chap.   XI]  MARITIME  LAW  [§  6 

The  vote  of  these  Conferences  is  of  capital  importance.  In 
spite  of  the  reservations  attaching  to  some  of  the  signatures,  and  in 
spite  of  certain  difficulties  of  application,  their  ratification  will 
mark  an  undoubted  progress.  Unfortunately,  upon  the  other 
subjects  studied,  common  understanding  seems  more  difficult. 

We  should  not  have  too  many  illusions  over  the  elaboration  of 
this  universal  maritime  law.  However,  it  may  already  be  counted 
as  considerable  progress  that  the  advantages  of  unification  are 
realized.1 

1  We  should  recall  that  the  Hague  Conference  (June  23  to  July  25, 
1910),  had  tried,  two  months  before,  to  reach  uniformity  on  the  subject 
of  bills  of  exchange;  cf.  CluneVs  "Journal",  etc.,  supra  (1911),  p.  385. 


415 


§1] 


PART   III      UNIFICATION   OF   LAW 


[Chap.  XII 


Chapter  XII 

THE  PROGRESS  OF  UNIFICATION  BY  INTERNATIONAL 
BODIES   OF    OFFICIAL   EXPERTS 

By  Paul  S.  Reinsch  * 


5  1. 

§  2. 
§3. 

§4. 
§5. 


§6. 

§7. 
§8. 
§9. 

§10. 
§11. 
§12. 


Impulses  to  Regulation  by 
Official  Expert  Unions. 

The  Telegraphic  Union. 

The  Radiotelegraphic  Con- 
ference. 

The  Universal  Postal  Union. 

The  International  Union  of 
Railway  Freight  Trans- 
portation. 

The  Automobile  Conference. 

Navigation. 

The  Metric  Union. 

Patents,  Trademarks,  and 
Copyrights. 

Protection  of  Labor. 

The  Sugar  Convention. 

Agriculture.   • 


§  13.     Insurance. 

§  14.     The     International     Prison 

Congress. 
§  15.     International  Sanitation. 
§  16.     The     International     Opium 

Commission. 
§  17.     The  Geneva  Convention. 
§  18.     Fisheries  Police. 
§  19.     Protection      of      Submarine 

Cables. 
§  20.     African     Slave     Trade    and 

Liquor  Traffic. 
§21.     White  Slave  Trade. 
§  22.     The  South  American  Police 

Convention. 


§  1.  Impulses  to  Regulation  by  Official  Expert  Unions.  —  The 
dominant  note  of  political  development  during  the  nineteenth 
century  was  undoubtedly  nationalism,  and  the  political  forces  of  the 
century,  intricate  and  involved  as  their  action  was,  may  be  under- 
stood and  analyzed  with  the  greatest  clearness  from  the  point  of 
view  of  the  struggle  for  complete  national  existence  and  unity  which 
was  going  on  in  all  the  principal  countries  of  the  earth.  Nations 
are  readily  personified,  and  there  is  a  unity  and  sequence  in  their 
action  which  makes  it  appear  very  concrete  when  compared  with 
other  political  influences  and  movements.  Thus  toward  the  end 
of  the  century,  after  the  great  struggles  in  the  United  States,  Ger- 
many, and  Italy  had  been  decided  in  favor  of  the  national  principle, 
it  seemed  as  if  the  latter  were  bound  to  exercise  an  almost  exclu- 

1  [American  Minister  to  the  Republic  of  China ;  formerly  Professor 
of  Political  Science  in  the  University  of  Wisconsin,  and  Delegate  of  the 
United  States  to  the  Third  and  the  Fourth  Pan-American  Conferences. 

This  Chapter  forms  Chapter  II  (pp.  12-67)  of  the  author's  treatise  en- 
titled "Public  International  Unions,  their  Work  and  Organization;  A 
Study  in  International  Administrative  Law"  (Boston,  1911,  published  for 
the  World  Peace  Foundation,  by  Ginn  and  Company.)  — Ed.] 

416 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  1 

sive  sway  over  the  future  destinies  of  humanity,  —  as  if  the  twen- 
tieth century  would  be  taken  up  with  a  fierce  economic  and  military 
competition  among  the  nationalities  who  had  achieved  a  complete 
political  existence.  Under  such  conditions  diplomacy  and  inter- 
national action  would  have  had  for  their  main  function  the  main- 
tenance of  a  political  balance  or  equilibrium  which  would  prevent 
the  undue  aggrandizement  of  any  one  state  or  nation.  Such, 
indeed,  had  been  the  original  and  continuing  purpose  of  diplomatic 
action. 

Yet,  notwithstanding  the  definiteness  and  energy  with  which  the 
action  of  nationalism  asserted  itself  in  nineteenth-century  politics, 
the  force  of  its  current  was  all  the  time  being  diminished  and  its 
direction  modified  by  that  other  great  principle  of  social  and  politi- 
cal combination  which  we  may  call  internationalism,  and  which 
comprises  those  cultural  and  economic  interests  which  are  common 
to  civilized  humanity.  During  the  Middle  Ages  the  unity  of 
civilization  rested  largely  upon  a  cultural  and  religious  basis.  In 
our  own  age  such  bonds  of  union  have  been  powerfully  supple- 
mented by  the  growing  solidarity  of  economic  life  throughout  the 
world,  as  well  as  by  the  need  in  experimental  and  applied  science 
to  utilize  the  experience  and  knowledge  of  all  countries.  The 
existence  of  such  an  underlying  economic  unity  of  the  civilized 
world  has  been  borne  in  upon  the  nations  with  greater  force  every 
succeeding  year.  The  development  of  the  facilities  for  communica- 
tion, bringing  with  them  a  great  increase  in  the  intercourse  and 
exchange  of  commodities  among  nations,  first  convinced  the  latter 
of  the  need  of  international  arrangements  of  an  administrative 
nature.  The  inconveniences  and  delays  caused  at  the  point  of 
transit  from  one  national  territory  to  another  by  the  existence  of 
different  administrative  methods  and  harassing  regulations  were 
such  a  serious  impediment  to  the  natural  currents  of  trade  that 
they  could  not  long  be  tolerated .  It  was  thus  that  a  strong  dema  nd 
arose  for  the  regulation  of  the  international  telegraph  and  postal 
service,  of  transfer  of  freight  on  railways,  and,  in  general,  of  all 
matters  affecting  international  communication.  It  is  not  difficult 
to  see  the  impulse  toward  joint  action  which  would  arise  from 
relations  such  as  those  mentioned. 

Other  interests,  such  as  manufacturing  and  insurance,  while 
sensitive  to  the  importance  of  international  economic  relations, 
wejje  not  so  directly  and  inevitably  affected  as  was  transportation. 
Yet  in  these  fields  another  principle  became  powerfully  active, 
inducing  nations  to  seek  for  a  cooperative  procedure  in  matters  of 

417 


§  1]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

industry  and  other  economic  enterprise.  This  principle  is  found 
in  the  need  of  raising  the  level  of  competition.  It  was  soon  dis- 
covered that  after  a  nation  had,  within  its  territory,  introduced 
some  improvement  in  the  condition  of  its  industries  and  its  labor, 
such  as  required  an  additional  expenditure  of  money,  its  industries 
might,  at  least  for  a  while,  be  seriously  threatened  by  the  com- 
petition of  those  countries  in  which  such  regulations  had  not  as  yet 
been  adopted.  The  industrial  interests  which  might  at  first  have 
opposed  the  introduction  of  such  measures  of  protection  now 
became  eager  partisans  of  their  extension  to  competing  nations 
by  means  of  treaties  and  administrative  arrangements.  The 
international  movement  for  improving  industrial  and  social 
conditions  therefore  found  powerful  support  not  only  among 
men  who  had  originally  favored  such  reform,  but  among  those 
interests  which,  through  its  introduction  in  certain  nations,  had 
been  placed  in  a  position  of  disadvantage  in  international  competi- 
tion. This  is  the  ground  for  international  action  in  matters 
affecting  agriculture,  labor,  sugar  production,  and  similar  economic 
activities.  Closely  allied  to  this  development  and  preceding  it  in 
time  is  the  movement  for  the  international  protection  of  patents 
and  copyrights. 

A  third  cause  for  international  action  arises  where  a  number  of 
nations  find  themselves  threatened  by  conditions  existing  in  less 
civilized  countries,  and  also  where  the  instrumentalities  and  pro- 
cesses of  their  economic  activities  extend  upon  these  as  beyond 
national  jurisdiction.  Thus  the  safeguarding  of  public  health 
against  the  importation  of  epidemics,  and  the  protection  of  sub- 
marine cables  in  high-sea  areas  became  the  subject  matter  of 
agreements  for  international  administrative  action. 

Civilized  nations,  being  desirous  of  conducting  their  affairs  in  the 
most  scientific  and  effective  fashion,  feel  the  need  of  making  use  of 
experience  and  knowledge  wherever  they  may  be  found.  Recogni- 
tion of  the  fact  that  no  people  has  a  monopoly  of  the  best  scientific 
and  administrative  processes  has  led  the  nations  to  seek  opportu- 
nities for  the  interchange  of  experience  such  as  are  afforded  by  con- 
gresses of  experts  in  various  fields  of  public  activity.  Many  of  the 
unions  formed  more  directly  for  administrative  purposes  also 
incidentally  act  as  centers  for  the  exchange  of  reliable  information. 

The  number  and  extent  of  the  international  activities  already  en- 
tered upon  are  surprising.  It  is  not  so  much  the  case  that  nations 
have  given  up  certain  parts  of  their  sovereign  powers  to  interna- 
tional administrative  organs,  as  that  they  have,  while  fully  reserv- 

418 


CHAP.    XII]  INTERNATIONAL    EXPERT    UNIONS  [§  2 

ing  their  independence,  actually  found  it  desirable,  and  in  fact 
necessary,  regularly  and  permanently  to  cooperate  with  other 
nations  in  the  matter  of  administrating  economic  and  cultural 
interests.  Without  legal  derogation  to  the  sovereignty  of  individ- 
ual states,  an  international  de  facto  and  conventional  jurisdiction 
and  administrative  procedure  is  thus  growing  up,  which  bids  fair  to 
become  one  of  the  controlling  elements  in  the  future  political 
relations  of  the  world. 

In  order  to  give  an  adequate  account  of  these  important  move- 
ments a  monographic  study  of  each  of  them  would  be  necessary. 
No  more  will  be  attempted  in  the  present  chapter  than  to  give 
an  indication  of  the  main  historical  facts  concerning  the  formation 
of  these  various  unions,  and  the  conventions  upon  which  they  rest. 
Special  attention  will  be  given  to  the  initial  difficulties  in  the  way  of 
reaching  such  agreements,  and  to  the  manner  in  which  those  exist- 
ing were,  as  a  matter  of  fact,  concluded.  The  diplomatic  and 
administrative  agencies  employed  in  the  formation  of  these  unions, 
or  created  for  their  purposes,  will  be  reviewed,  as  well  as  the  influ- 
ence of  private  initiative  and  associated  effort  in  bringing  about 
join  action  by  the  governments.  We  shall  also  note  the  functions 
attributed  to  the  international  organs,  and  the  main  administra- 
tive principles  and  methods  established.  The  present  chapter  will 
be  confined  to  a  brief  account  of  the  various  unions  from  these 
points  of  view.1 

I.    Communication 

§  2.  The  Telegraphic  Union.2  —  (U  Union  des  administrations 
telegraphiques.)     The  first  important  international  administrative 

1  General  References:  Poinsard,  L.,  "Droit  international  conven- 
tional", 1896;  "Le  droit  international  au  XXe  siecle",  Paris,  1907; 
Moynier,  G.,  "  Les  bureaux  internationaux  ",  Geneva,  1892  ;  Kazanski,  P., 
"The  General  Administrative  Unions  of  States"  (in  Russian),  Odessa, 
1897 ;  Kazanski,  "Die allgemeinen  Staatenvereine  ",  in  "  Jahrb.  d.  internat. 
Vereinigung",  Vol.  VI,  Berlin,  1904;  Descamps,  "Les  offices  internatio- 
naux", Brussels,  1894;  Lavollee,  "Les  unions  internationales",  in  "Rev. 
d'hist.  dipl.",  Vol.  I,  p.  331 ;  Fiore,  "L'organisation  juridique  de  la  societe 
internationale  ",  in  "Revue  de  droit  international",  1899,  pp.  105,  209; 
Olivart,  Marques  de,  "Tratado  de  derecho  internacional  publico  ",  Vol.  II, 
Madrid,  1903;  Ullmann,  "Volkerrecht",  p.  282;  Field,  D.  D.,  "Draft 
Outlines  of  an  International  Code",  1872;  Oppenheim,  L.,  "International 
Law",  Vol.  I,  1896;  Schucking,  W.,  "L'organisation  internationale", 
"Revue  generale  de  droit  international",  Vol.  XV,  p.  5;  Nippold,  O., 
"Verfahren  in  volkerrechtl.  Streitigkeiten ",  chap.  I,  Leipzig,  1907. 
"Annuaire  de  la  vie  internationale",  A.  II.  Fried,  ed.,  Brussels,  contains 
valuable  data  on  international  unions;  Edition  190S-1909  contains. the 
organic  laws  of  most  of  the  unions,  public  as  well  as  private. 

2  Fischer,  P.  D.,  "Die  Telegraphie  und  das  Volkerrecht ",  Leipzig,  1876; 
Saveney,  E.,  "La  telegraphie  internationale",  "Revue  de  deux  mondes", 

419 


§  2]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

union  to  be  established  was  the  telegraphic  union.  From  1849  on, 
treaties  had  been  made  between  individual  European  states  con- 
cerning telegraphic  communication.  In  1850  an  Austro-German 
telegraph  union  was  organized ;  another  union  embraced  France, 
Belgium,  and  Prussia ;  and  through  the  convention  of  October 
4,  1852,  at  Paris,  all  continental  states  which  at  that  time  had 
state  telegraphs  regulated  the  mutual  relations  of  their  services. 
Through  such  conventions  as  these  the  international  relations  in 
this  matter  were  made  more  satisfactory,  without,  however,  secur- 
ing that  uniformity  and  regularity  which  the  interests  of  the  various 
nations  really  demanded.  The  desire  to  attain  such  uniformity  by 
a  universal  union  led  to  the  convening  of  a  conference  at  Paris  in 
1865.  Twenty  states  were  represented  by  their  diplomatic  agents 
at  Paris,  assisted  by  expert  delegates.  The  conference,  therefore, 
had  the  double  character  of  a  diplomatic  congress  and  a  meeting 
of  expert  representatives  of  the  various  administrations.  The 
results  of  the  work  of  the  conference  were,  in  accordance  with  this 
double  character,  divided  into  a  convention,  or  treaty,  signed  by 
the  diplomatic  representatives,  and  a  "reglement"  controlling  the 
administrative  details,  which  was  signed  by  the  expert  delegates. 
These  conventions  resulted  in  a  great  simplification  of  the  inter- 
national service  as  well  as  in  a  considerable  reduction  in  the  tariff 
rates.  Many  difficulties  of  local  opposition  had  to  be  overcome 
before  an  agreement  could  be  reached.  The  discussions  of  the 
conference  are  of  exceptional  interest,  as  it  constitutes  the  first 
important  attempt  to  arrange  for  permanent  cooperation  between 
sovereign  states  in  administrative  matters.  As  a  precedent  for 
international  action,  the  conference  of  Paris  must  be  accorded  a 
very  high  importance.  The  telegraphic  union  which  was  thus 
formed  embraced  all  the  states  represented,  and  to  these  were 
added,  during  the  subsequent  three  years,  eight  other  states  and 
colonies. 

The  first  regular  conference  of  the  union  took  place  at  Vienna  in 
June,  1808.  The  double  nature  of  the  conference  —  composed  of 
diplomatic  and  technical  representatives  —  was  preserved  on  this 

Kf'|>1«'in1><T  ;inrl  October,  1S72;  Renault,  L.,  "Rapports  international; 
La  poste  el  !<•  telegraphe",  Paris,  1X77;  Carmichael,  /','.,  "The  Law  relat- 
ing to  t  he  Telegraph,  the  Telephone,  and  i  lie  Submarine  ( "able  ",  London, 
1903;  Kazan8ki,  I'.,  "L'union  telfigraphique  Internationale",  "Revue 
de  droil  international",  1897,  i>.  451;  Meili,  "Die  internationalen 
Uhionen,  etc.",  Leipzig,  1889;  Rolland,  L.,  "De  la correspondance  postale 
el  teldgraphique ",  1901;  "Journal  tfilfigraphiquo ",  Born,  since  lS(il); 
"Arehiv  f.  Post  u.  Telegraphie",  Vol.  XXXII,  pp.  G5-89;  Treaties  in 
"  Axchi\  es  diplomatiques." 

420 


Chap.    XII]  INTERNATIONAL   EXPERT   UNIONS  [§  2 

as  well  as  on  subsequent  occasions.  Five  more  members  were  ad- 
mitted at  this  time,  including  the  telegraph  administration  of 
British  India.  The  most  important  act  of  the  conference  of  1868 
was  the  establishment  of  a  bureau  having  its  seat  at  Bern,  and 
acting  as  a  central  organ  of  the  union.  At  the  conference  at 
Rome,  in  1871,  representatives  of  important  private  telegraph 
companies  were  admitted  as  advisory  members.  The  conference 
at  St.  Petersburg  (1875)  recast  the  constitutional  form  of  the  union 
by  distinguishing  more  carefully  between  the  matters  to  be  dealt 
with  in  the  diplomatic  convention  and  those  to  be  included  in  the 
"  reglement."  The  convention  was  made,  in  a  way,  the  constitu- 
tion of  the  union,  laying  down  the  fundamental  principles  which 
were  accepted  as  expressing  the  essential  relations  and  duties 
of  the  members  and  the  permanent  basis  of  the  administration. 
The  "reglement",  on  the  other  hand,  was  composed  of  those 
administrative  regulations  by  which  the  details  of  the  administra- 
tion were  fixed,  and  which  were  susceptible  of  gradual  modifica- 
tion, corresponding  to  changes  in  the  character  of  the  administra- 
tive relations.  A  similar  basis  of  division  had  been  used  the 
preceding  year  in  the  formation  of  the  general  postal  union. 
Among  the  matters  which  were  laid  down  by  the  convention  are  the 
general  classification  of  telegrams,  the  admission  of  cipher  dis- 
patches, conditions  of  suspending  the  service,  and  the  right  of 
declining  responsibility  for  loss.  The  details  of  the  tariff  and  the 
application  of  the  above  rules  are  fixed  by  the  "  reglement." 

Among  the  principles  established  by  the  convention,  the  follow- 
ing are  of  general  interest :  the  secrecy  of  correspondence  is  to  be 
guarded ;  the  governments  do  not  admit  any  responsibility  on 
account  of  the  service  of  international  telegraphy,  particularly  for 
damages  caused  by  delay  in  delivery  of  messages;  special  wires 
are  to  be  used  for  the  international  service.  Telegrams  are  divided 
into  three  classes,  —  state  telegrams,  service  telegrams,  and  private 
telegrams.  The  contracting  parties  reserve  the  power  to  stop  the 
transmission  of  every  private  telegram  which  may  seem  dangerous 
to  the  state  or  contrary  to  its  laws ;  when  judged  necessary,  the 
telegraph  service  may  be  suspended  entirely  or  partially.  The 
convention  further  established  the  central  organ  or  bureau  men- 
tioned above,  and  laid  down  a  definite  basis  for  international  tariffs 
of  charges.  Periodical  administrative  conferences  are  to  be  held 
for  the  purpose  of  revising  the  convention  and  the  "  reglement  "; 
in  the  deliberations,  each  public  telegraph  administration  has  the 
right  to  one  vote.     The  revisions  decided  upon  by  the  conference 

421 


§2] 


PART  III      UNIFICATION   OF   LAW 


[Chap.  XII 


do  not  come  into  force  until  they  have  received  the  approba- 
tion of  all  the  contracting  states. 

The  telegraphic  union  is  at  the  present  time  composed  of  forty- 
eight  states  and  colonies.  Its  regulations  are  observed  also  by 
the  submarine  cable  companies.  The  union  comprises  all  the 
important  countries  of  the  world  with  the  exception  of  the  United 
States,  China,  Mexico,  Peru,  and  Canada.  It  is  likely  that  China 
will  be  a  member  before  long.  As  only  a  very  small  fraction  of  the 
telegraph  lines  in  the  United  States  is  under  federal  control,  the 
government  is  not  in  a  position  to  fulfill  the  main  requisite  to  becom- 
ing a  member  of  the  union,  namely,  "  being  in  a  position  to  insure 
the  general  acceptance  of  the  principles  and  rules  of  the  inter- 
national telegraph  conference-  on  the  part  of  the  private  companies 
within  its  territory."  Hence  the  repeated  invitation  to  become  a 
member  has  had  to  be  declined.  The  American  government  has 
however  been  represented  at  the  recent  conferences  of  the  union  by 
delegates  who  are  accorded  the  right  to  speak,  but  who  do  not  vote. 

The  great  increase  in  telegraphic  communication  in  the  last 
quarter  century  is  shown  in  the  following  table  from  a  United  States 
government  report,  giving  the  combined  statistics  of  all  the  coun- 
tries in  the  union : 


1868 
1885 
1905 


Domestic 
Telegraphs 


19,961,925 
132,090,116 
310,201,679 


International 
Telegraphs 


5,678,405 
13,339,742 
82,196,656 


Total 


25,640,338 
145,429,858 
392,398,335 


In  1868  the  telegraph  lines  of  the  countries  belonging  to  the  tele- 
graphic union  (including  cables)  had  a  total  length  of  135,378 
miles;  in  1885  it  had  increased  to  407,997  miles;  and  in  1905,  to 
786,340  miles. 

The  international  telegraphic  bureau  began  operations  on  Janu- 
ary 1,  1869.  It  is  under  the  supervision  of  the  Swiss  government, 
and  its  expenses  are  met  by  the  states  in  proportion  to  the  impor- 
tance of  their  telegraphic  intercourse.  Its  original  budget  allow- 
ance was  only  50,000  francs  a  year,  of  which,  as  a  matter  of  fact, 
only  65  per  cent  on  an  average  was  used  during  the  earlier  period. 
The  conference  at  St.  Petersburg  increased  the  budget  to  60,000 
francs,  and  it  now  stands  at  100,000  francs  a  year.  The  attributes 
of  the  bureau  as  determined  by  the  convention  are  as  follows :  It 
is  to  collect  information  concerning  international  telegraphy ;   to 

422 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  3 

give  due  form  to  demands  for  changes  in  the  tariffs  and  in  the  ser- 
vice regulations,  and  to  give  notice  of  such  changes ;  and  to  make 
special  studies  and  investigations  when  so  directed  by  the  con- 
ferences of  the  union. 

The  "  reglement  "  provides  that  the  various  telegraphic  adminis- 
trations shall  keep  each  other  informed,  through  the  intermediary 
of  the  bureau,  of  all  changes  and  improvements  in  their  service  and 
of  interruptions  in  communication.  They  shall  also  furnish  to  the 
bureau  all  statistical  information,  so  as  to  enable  it  to  issue  a  com- 
plete annual  account  of  the  international  telegraphic  services.  At 
the  periodic  conferences  of  the  union,  a  program,  worked  out  before- 
hand under  the  initiative  of  the  state  where  the  conference  is  to  be 
held,  and  in  consultation  with  the  other  governments  interested, 
forms  the  basis  of  discussion.  Committees  are  appointed  to  con- 
sider in  detail  the  various  propositions.  The  resolutions  of  the 
conference  are  not  binding  until  accepted  by  all  the  administra- 
tions of  the  contracting  states,  although  for  their  adoption  by  the 
conference  only  a  majority  vote  of  the  delegates  present  is  necessary. 
A  change  of  the  fundamental  convention  would  of  course  require 
the  diplomatic  action  of  all  the  treaty  powers.  It  is  a  general 
principle  illustrated  by  the  telegraphic  union  that  in  such  combina- 
tions the  sovereignty  of  each  member  demands  that  an  important 
act  of  the  union  should  be  undertaken  only  by  unanimous  consent ; 
but  the  members  of  the  union,  of  course,  remain  free  to  conclude 
among  themselves  special  agreements,  not  conflicting  with  the 
general  treaty,  which  their  special  situation  and  interests  may 
require.  Should  certain  members  refuse  to  accede  to  the  establish- 
ment of  a  proposed  reform,  those  desiring  the  change  may  form  a 
restricted  union  for  such  special  purpose. 

§  3.  Wireless  Telegraphy.1  —  The  invention  of  wireless  teleg- 
raphy raised  many  novel  problems  in  international  law  and 
administration.  The  legal  questions  involved  are  of  great  interest, 
even  when  considered  only  from  the  point  of  view  of  an  individual 
sovereignty  ;  but  as  telegraphy  is  an  operation  which  is  an  essential 
part  in  the  intercourse  between  nations,  the  method  and  manner  of 
telegraphic  communication  and  the  rules  regulating  it  could  not 
have  been  satisfactorily  settled  without  resorting  to  international 

1  Meili,  T.,  "Die  drahtlose  Telegraphie,"  Zurich,  1908.  Landsberg,  A., 
"Die  drahtlose  Telegraphie",  Marburg,  1909;  Favchille,  P.,  "Le  regime 
aerien,  etc.",  "Revue  generale  de  droit  international",  Vol.  VIII,  p.  414; 
Rolland,  "La  telegraphie  sans  fil  ",  "Revue  generale  de  droit  international ", 
Vol.  XIII,  p.  58  ;  Lorentz,  "  Les  cables  sousmarins  et  la  telegraphie  sans  fil ", 
Nancy,  1906;  "Docum.  de  la  conference  radiotel.  de  1906",  Berlin  ;  "Re- 
port of  Select  Committee",  "Pari.  Sess.  Papers",  No.  246,  London, 1907. 

423 


§  3]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

agreement.  As  there  had  been  an  attempt  on  the  part  of  Great 
Britain  to  build  up  a  radiotelegraphic  monopoly,  other  nations  in 
self-defense  favored  an  agreement  by  which  such  narrow  control 
of  an  international  service  would  be  prevented.  A  preliminary 
conference  on  radiotelegraphy  took  place  in  Berlin  in  1903.  This 
was  followed  by  a  more  formal  conference  in  1906,  at  which  a 
convention  was  framed  and  adopted.  The  convention  is  accom- 
panied by  a  protocol  containing  subsidiary  arrangements,  as  well  as 
a  "  reglement  "  defining  more  in  detail  the  principles  of  the  con- 
vention and  laying  down  rules  for  the  administration.  The 
principal  provisions  of  the  convention  are  as  follows :  Coast 
stations  and  stations  on  ships  are  bound  to  exchange  radiotelegrams 
without  discrimination  against  any  system.  Wireless  stations 
must  accept  appeals  for  aid  from  ships  in  distress  in  preference  to 
any  other  messages.  Inland  stations  must  be  connected  with  the 
coast  stations  by  special  wires.  Naval  and  military  stations  can 
of  course  be  maintained  and  they  will  not  be  subject  to  the  duty 
of  furnishing  public  service.  The  provisions  of  the  convention  and 
"  reglement  "  may  be  changed  by  common  accord  among  the 
contracting  parties.  Conferences  of  plenipotentiaries  or  simple 
administrative  conferences  shall  take  place  periodically,  the  former 
dealing  with  the  convention,  the  latter  with  the  "  reglement." 
In  these  each  country  is  entitled  to  one  vote.  Colonies  or  protec- 
torates may  be  admitted  to  the  union  on  their  own  account.  A 
bureau  is  established,  charged  with  furnishing  every  kind  of  in- 
formation upon  radiotelegraphy,  giving  notice  of  changes  in  the  con- 
vention or  "  reglement  ",  and  in  general  performing  all  administra- 
tive labors  in  the  interest  of  international  radiotelegraphy.  In 
case  of  dispute  between  two  or  more  governments  concerning  the 
interpretation  or  execution  of  the  convention,  the  question  may  be 
submitted  to  arbitral  decision.  Each  litigant  then  chooses  another 
government  as  arbiter ;  if  these  do  not  agree,  they  may  choose  a 
third  government  as  umpire.  The  Italian  delegation,  while  signing 
the  convention,  made  a  reservation  to  the  effect  that  their  govern- 
ment could  not  ratify  until  the  expiration  of  its  contracts  with  the 
Marconi  Company.  In  the  end  the  conference  did  not  create  a 
separate  bureau,  but  charged  the  telegraphic  bureau  at  Bern  to 
act  as  a  central  office  of  correspondence  and  information  in  con- 
nection with  radiotelegraphy,  and  authorized  it  to  spend  40,000 
francs  a  year  for  this  branch  of  the  service.1 

1  The  union  for  the  protection  of  submarine  cables  will  be  taken  up  in 
connection  with  international  police  arrangements. 

424 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  4 

§  4.  The  Universal  Postal  Union.1  —  The  industrial  and  commer- 
cial development  of  the  early  nineteenth  century  brought  with  it  a 
remarkable  growth  in  postal  business.  The  carrying  of  letters  and 
other  missives,  originally  a  private  enterprise,  had  been  generally 
assumed  by  the  various  states  during  the  second  half  of  the  eight- 
eenth century,  although  it  was  only  as  recently  as  1867  that  the 
private  postal  service  of  the  Thurn  and  Taxis  family  was  taken  over 
by  the  Prussian  government.  As  the  postal  system  of  each  state 
was  an  independent  unit,  and  had  practically  no  administrative 
relations  with  other  postal  services,  there  was  a  great  complexity 
in  arrangements  and  rates  as  far  as  international  business  was  con- 
cerned. This  was  exceedingly  cumbersome  and  constituted  a  great 
impediment  to  commerce.  Not  only  were  the  rates  of  postage 
very  high,  but  the  tariffs  were  confused  by  the  fact  that  the  charges 
varied  according  to  the  respective  route  of  transit.  Thus,  for 
instance,  there  were  three  different  rates  between  Germany  and 
Austria,  five  different  rates  between  Germany  and  Australia,  four 
different  rates  between  Germany  and  Italy,  according  to  the  partic- 
cular  route  taken  by  the  letter.  Postage  between  Germany  and 
Italy,  for  instance,  varied  from  forty-eight  to  ninety  pfennigs  per 
letter.  A  letter  from  the  United  States  to  Australia  would  pay 
either  five,  thirty-three,  forty-five,  or  sixty  cents,  or  $1.02  per  half 
ounce,  according  to  the  route  by  which  it  was  sent.  Mail  service 
was  by  no  means  frequent,  but  the  fact  that  a  letter  was  prepaid 
for  a  certain  route  often  prevented  it  from  taking  advantage  of  a 
quicker  means  of  communication.  It  might  just  have  missed  the 
mail  for  which  it  was  prepaid,  by  a  few  hours,  but  would  have  to 
wait  until  another  mail  left  by  the  same  route  before  it  would  be 
forwarded.  Charges  in  general  were  very  high ;  thus  the  rate 
upon  a  registered  letter  between  Berlin  and  Rome  amounted  to  four 
marks  and  ten  pfennigs.  In  making  up  a  through  rate,  the  transit 
charges  of  every  country  whose  administration  handled  the  letter 
would  be  included.  The  accounts  of  such  mutual  charges  were 
exceedingly  complicated  and  it  took  a  vast  amount  of  clerical 
work  to  keep  them  balanced.  Further  difficulty  was  introduced 
through  the  difference  in  weights  and  in  currency,  all  of  which  had 
to  be  taken  account  of  in  computing  rates.     It  will  be  apparent 

1  Weithase,  H.,  "Gescliiehte  des  Weltpostvereins ",  Strassburg,  1899; 
Rolland,  Meili,  op.  cit.;  Schroeter,  C,  "Der  Weltpostverein ",  1900; 
Krains,  H.,  "L'Union  postale  universelle ",  1908;  "L'Union  postale ", 
Bern,  since  1875;  Treaties  of  October  9,  1874,  June  1,  1878,  and  May  26, 
1906,  in  "Archives  diplomatiques ; "  "L'Union  postale  universelle", 
published  by  the  international  bureau  at  Bern,  1900. 

425 


§  4]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

from  these  few  facts  and  examples  that  the  service  lacked  that 
rapidity  and  cheapness  which  alone  could  make  it  a  real  influence 
in  the  development  of  world-wide  business  relations.  A  remedy 
could  be  created  only  through  international  action.  Nor  were 
treaty  arrangements  between  individual  nations  sufficient  to  solve 
the  problem.  What  was  needed  was  an  understanding  between 
all  the  civilized  nations  of  the  world. 

Beginning  with  the  year  1S02,  a  large  number  of  conventions  for 
the  purpose  of  regulating  postal  communication  were  concluded  by 
groups  of  two  or  more  nations.  After  the  middle  of  the  century  this 
international  interest  assumed  such  proportions  that  the  establish- 
ment of  a  regime  of  uniform  regulations  appeared  highly  desirable. 
In  1862  the  United  States  government  officially  took  the  lead  in  this 
matter;  the  Department  of  State  called  attention  to  the  many 
inconveniences  arising  from  the  lack  of  unity,  and  suggested  the 
holding  of  an  international  postal  conference.  Such  a  conference 
accordingly  assembled  at  Paris  in  May  and  June,  1863,  on  which 
occasion  fifteen  states  were  represented ;  though  its  avowed  pur- 
pose was  not  as  yet  to  produce  definite  treaty  regulations,  but,  on 
the  basis  of  full  and  free  discussion,  to  clear  up  the  general  princi- 
ples which  should  dominate  international  postal  administration. 
Many  practical  difficulties  in  the  way  of  a  unified  system  revealed 
themselves,  especially  in  connection  with  the  freedom  of  transit 
and  the  division  of  the  proceeds  from  mail  passing  through  two  or 
more  jurisdictions.  In  its  resolutions  the  conference  declared 
itself  in  favor  of  thirty-one  principles,  which  covered,  among  other 
matters,  the  transmission  of  letters  with  declared  value  and  of 
inferior  classes  of  mail,  a  uniform  system  of  tariffs,  and  the  estab- 
lishment of  fixed  transit  dues. 

In  the  subsequent  decade  not  much  progress  was  made,  but  in 
1869  the  German  postal  union  began  to  negotiate  for  the  calling  of 
a  new  congress.  The  Franco-German  War  interrupted  these 
negotiations,  but  they  were  taken  up  again  at  its  conclusion,  and 
finally  Switzerland  convoked  a  conference  to  meet  in  September, 
1873.  Russia  and  France  at  first  indicated  their  unwillingness  to 
take  part  in  the  enterprise.  The  French  administration  believed 
that  the  formation  of  a  postal  union  would  cause  it  severe  financial 
loss  on  account  of  the  lowering  of  transit  charges.  This  considera- 
tion, combined  with  the  fact  that  the  movement  had  been  initiated 
by  the  German  government,  led  to  the  reluctant  attitude  assumed 
by  France.  Public  opinion  and  business  interests,  however,  com- 
pelled her  to  join  in  the  formation  of  a  union,  even  at  the  loss  of  five 

426 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  4 

million  francs  a  year  in  postal  income.  Thus  after  a  short  delay 
Russia  and  France  agreed  to  meet,  and  the  conference  finally 
came  together  on  September  15,  1874.  The  points  to  be  considered 
had  been  very  carefully  prepared  by  the  German  postal  administra- 
tion, under  the  guidance  of  Postmaster-General  Stephan,  and  the 
conference,  therefore,  was  enabled  immediately  to  enter  upon  the 
discussion  of  specific  problems  of  organization. 

Twenty-two  states  were  represented  at  the  conference ;  the  dele- 
gates were  in  most  cases  the  heads  of  postal  administrations,  or  high 
officials  connected  with  the  same.  The  excellence  of  the  pre- 
paratory labors  enabled  the  congress  to  finish  its  work  in  less  than 
four  weeks,  and  in  this  short  time  to  create  the  constitution  and 
regulations  of  the  General  Postal  Union.  As  in  the  case  of  the 
telegraphic  union,  a  convention  fixed  the  general  principles  upon 
which  the  union  and  its  administrative  work  are  based,  while 
details  were  worked  out  in  a  "  reglement."  The  leading  principles 
established  were  the  complete  freedom  of  transit  from  one  juris- 
diction to  another,  and  the  creation  of  a  practically  unified  postal 
territory  comprising  all  the  treaty  states.  It  is,  of  course,  neces- 
sary to  distinguish  between  freedom  and  gratuitousness  of  transit. 
The  latter  could  not  possibly  be  established,  for  states  of  central 
location,  like  Belgium  and  France,  had  too  large  and  direct  a 
financial  interest  in  the  matter ;  but  transit  charges  were  reduced 
to  fixed  payments  on  the  total  net  weight.  This  swept  away  the 
whole  maze  of  accounts ;  at  present  mails  in  transit  are  weighed 
during  four  weeks  every  six  years,  as  a  basis  for  charges.  The 
postal  convention  of  1874  was  ratified  by  the  action  of  the  diplo- 
matic representatives  of  the  powers  at  Bern,  in  May,  1875. 

A  very  important  postal  congress  was  held  at  Paris  in  1878.  The 
French  representatives  favored  the  conclusion  of  an  entirely  new 
convention,  but  the  action  taken  did  not  go  beyond  a  modification 
in  some  details  of  the  convention  of  1874.  The  union  at  this  time 
assumed  the  name  of  Universal  Postal  Union.  The  number  of 
states  and  colonies  represented  had  risen  to  thirty-two.  While 
the  organization  of  the  union  was  not  materially  modified,  the 
voting  right  of  colonies  was  regulated  so  as  to  give  one  vote  each  to 
British  India  and  Canada,  and  one  vote  each  to  the  combined 
French,  Spanish,  Dutch,  Portuguese,  and  Danish  colonies.  Sub- 
sequent congresses  (Lisbon,  1885 ;  Vienna,  1891 ;  Washington, 
1897 ;  Rome,  1906)  concerned  themselves  very,  largely  with  the 
details  of  administration.  The  congress  of  Vienna,  however, 
instructed  the  international  bureau  of  the  postal  union  to  act  as  a 

427 


§  4]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

clearing  house  for  the  adjustment  of  the  mutual  financial  claims 
of  the  various  national  postal  administrations.  Each  administra- 
tion forwards  to  the  bureau  a  monthly  statement  of  its  accounts 
with  every  other  national  administration.  The  bureau  balances 
these  accounts,  collects  from  the  administrations  whose  balance  is 
unfavorable,  and  pays  over  the  proceeds  to  the  nations  entitled  to  a 
credit.  This  congress  also  provided  for  an  international  exchange 
of  newspaper  subscriptions.  In  many  European  states  subscrip- 
tions to  periodicals  and  newspapers  may  be  arranged  for  through 
the  postal  service.  The  extension  of  this  system  so  as  to  enable  a 
subscriber  to  give  his  order  and  pay  his  subscription  for  some  paper 
published  in  a  foreign  country,  at  the  post  office  of  his  home  town, 
was  made  possible  by  the  arrangements  adopted  at  Vienna.  At 
this  congress  the  Australian  colonies  were  admitted  to  the  union 
with  the  right  of  one  vote.  The  congress  of  Rome,  in  1906,  agreed 
upon  a  further  reduction  in  the  charges  by  permitting  a  greater 
weight  to  be  carried  in  letters.  By  divers  groupings  of  member- 
states,  numerous  restricted  unions  for  special  purposes  have  been 
formed. 

The  convention  of  the  universal  postal  union,  as  revised  by  the 
congress  of  Rome  in  1906,  lays  down  certain  principles  of  law  regard- 
ing the  relations  and  duties  of  the  various  postal  administrations, 
and  establishes  the  organization  of  the  union  as  well  as  the  functions 
of  congresses,  conferences,  and  of  the  bureau.  The  right  of  transit 
is  guaranteed  throughout  the  entire  territory  of  the  union.  Transit 
charges,  to  be  paid  to  each  of  the  countries  traversed,  are  based 
upon  weight  and  distance.  Thus,  for  instance,  one  franc  fifty  cen- 
times is  paid  per  kilogram  of  letters  for  distances  not  exceeding 
three  thousand  kilometers.  The  rates  of  postage  on  the  different 
classes  of  mail  matter  are  fixed  on  a  uniform  standard  throughout 
the  entire  extent  of  the  union  ;  the  rates  for  registry,  too,  are  made 
uniform,  although  non-European  countries  are  allowed  to  charge  a 
double  fee.  The  congress  of  Rome  established  the  principle  that 
postal  administrations  are  responsible  for  the  loss  of  a  registered 
article,  to  the  amount  of  fifty  francs.  It  also  provided  for  prepaid 
reply  coupons,  which  are  issued  in  all  the  countries  of  the  union  and 
may  be  sent  to  any  other  country,  there  to  be  exchanged  for  a 
stamp  to  frank  the  reply.  The  convention  contains  special  prohibi- 
tions with  respect  to  things  not  to  be  sent  through  the  international 
mails,  though  it  "  does  not  impliedly  alter  the  legislation  of  any 
country  as  regards  anything  not  expressly  provided  for  by  its 
stipulations  " ;    nor  does  it  restrict  the  right  of  the  contracting 

428 


CHAP.    XII]  INTERNATIONAL   EXPERT   UNIONS  [§  4 

parties  to  conclude  treaties  with  a  view  to  making  special  postal 
arrangements  with  each  other. 

The  duties  of  the  various  organs  of  the  union  are  outlined  in  the 
convention.  The  administrative  organ  of  the  union  is  the  interna- 
tional postal  bureau,  located  at  Bern.  It  is  under  the  supervision 
of  the  Swiss  government.  Its  duties  are  to  gather,  publish,  and 
distribute  information  of  all  kinds  on  the  international  postal 
service ;  upon  the  demand  of  the  parties  interested,  to  give  advice 
on  controversial  questions ;  to  give  regular  form  to  propositions 
for  the  modification  of  the  "  reglement  " ;  to  notify  the  various 
administrations  of  adopted  changes ;  to  facilitate  the  operations 
of  international  accounting ;  and,  in  general,  to  make  such  studies 
and  engage  in  such  work  as  shall  be  in  the  interests  of  the  postal 
union.  The  official  language  is  French,  and  the  bureau  publishes  a 
monthly  journal,  "  L'Union  postale  ",  in  French,  English,  and 
German.  A  very  important  article  of  the  convention  provides  for 
the  settlement  of  disputes  by  arbitration.  In  any  case  of  disagree- 
ment upon  the  interpretation  of  the  convention  or  concerning  the 
responsibility  of  any  administration,  each  of  the  governments 
concerned  chooses  another  member  of  the  union  not  directly  inter- 
ested in  the  matter;  if  necessary,  the  arbitrators  thus  selected 
choose  another  administration  as  umpire.  Decisions  are  deter- 
mined by  a  majority  of  votes. 

A  congress  of  the  union  shall  be  held  not  later  than  five  years  after 
the  acts  adopted  at  the  previous  congress  have  entered  into  force,  or 
it  may  be  called  when  demanded  by  two  thirds  of  the  governments. 
The  congress  is  composed  of  plenipotentiaries  empowered  to  intro- 
duce changes  both  in  the  convention  and  the  "  reglement "  ;  where- 
as the  conference  is  an  administrative  body  which  deals  only  with 
the  latter.  In  the  interval  between  meetings  of  the  congress 
proposals  for  changes  in  the  convention  may  be  made  and  acted 
upon ;  in  such  cases  six  months  must  be  given  for  the  administra- 
tions to  examine  the  proposals  before  communicating  their  vote. 
For  a  change  in  the  more  important  articles  unanimity  of  votes  is 
required,  but  articles  regulating  minor  details  may  be  modified 
by  a  two-thirds  vote.  If  the  question  concerns  only  the  interpreta- 
tion of  the  convention,  a  simple  majority  is  sufficient.  Countries 
outside  of  the  union  may  be  admitted  to  membership  upon  their 
demand.  The  protectorates  and  colonies  belonging  to  European 
countries  and  to  the  United  States  are  arranged  in  seventeen 
groups,  each  one  of  which  is  considered  as  a  single  country  or 
administration. 

429 


§  4]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

Further  important  organic  arrangements  are  contained  in  the 
"reglement",  though  the  larger  part  of  this  is  taken  up  with 
specific  rules  concerning  the  transmission  of  mail  matter  and  ac- 
countability with  respect  to  transit  charges.  The  "  reglement  " 
divides  the  countries  of  the  union  into  seven  classes  in  order  to  de- 
termine the  portion  of  budget  charges  to  be  borne  by  each.  Each 
class  contributes  in  the  proportion  of  a  certain  number  of  units. 
The  annual  budget  of  the  bureau  at  the  present  time  is  125,000 
francs.  The  duties  of  the  bureau  are  more. specifically  laid  down, 
and  arrangements  are  made  for  communications  to  be  addressed 
to  it  by  the  governments ;  its  function  of  settling  and  liquidating 
accounts  between  the  administrations  is  developed  with  special 
minuteness.  It  is  the  duty  of  the  international  bureau  to  effect 
the  balance  and  liquidation  of  accounts  of  every  description  relative 
to  the  international  postal  service  between  administrations  of 
countries  of  the  union  who  desire  to  make  use  of  this  service.  In 
1907  the  financial  transactions  of  the  bureau  acting  as  a  clearing 
house  amounted  to  76,916,000  francs. 

The  "  reglement  "  may  be  changed  in  the  same  manner  by  the 
congresses,  and  in  intervals  between  them  by  the  governments, 
as  in  the  case  of  the  convention. 

It  may  be  noted  that  the  tendency  of  development  in  the  postal 
union  has  not  been  toward  giving  greater  powers  to  majorities  of 
member  states.  In  1878,  out  of  twenty-three  articles  of  the  conven- 
tion only  six  required  unanimity  of  votes  for  their  modification ;  at 
present  as  many  as  fifteen  require  unanimity,  while  only  fourteen 
may  be  modified  through  a  smaller  vote. 

The  postal  union  now  comprises  all  the  countries  and  colonies  of 
the  world  with  the  exception  of  Morocco,  Afghanistan,  Baluchistan, 
and  a  few  Pacific  islands.  China  and  Ethiopia  are  the  most  recent 
accessions  to  the  union.  A  conception  of  the  vast  extent  of  the 
postal  business  of  the  world  may  be  gained  from  the  following 
figures :  In  1905  there  were  mailed  in  the  territory  of  the  union 
32,140  million  pieces  of  mail  matter;  the  money-order  business 
amounted  to  6432  millions  of  dollars  ;  the  declared  value  of  objects 
sent  amounted  to  15,200  million  dollars. 

Id  1909  a  beautiful  monument  was  erected  at  Bern  to  com- 
memorate the  founding  of  the  postal  union.  Upon  the  occasion  of 
its  unveiling,  a  great  many  tributes  were  paid  to  the  remarkable 
development  and  influence  of  the  union.  Expressions  such  as  the 
following  from  the  speech  of  M.  Deucher,  president  of  the  Swiss 
confederation,  are  significant: 

430 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  4 

The  old  assembly  house  of  the  Bernese  diet  bears  this  inscription  : 
"It  is  in  this  building  that  the  universal  postal  union  was  founded  on 
October  the  ninth,  1874."  To-day,  thirty-five  years  later,  there 
rises  on  one  of  the  most  beautiful  sites  of  our  capital,  the  grand 
commemorative  monument,  the  unveiling  of  which  we  are  met  to 
celebrate. 

The  five  genii  which  surround  the  globe  represent  the  universal  im- 
portance of  the  union  and  attest  the  power  gained  by  a  great  idea,  for 
the  realization  of  which  nations  went  hand  in  hand,  regardless  of  the 
difference  of  race,  language,  and  religion,  political  and  economic 
interests,  —  a  triumph  of  civilization  and  culture,  a  bond  of  union 
between  the  peoples  of  the  world.  The  universal  postal  union,  a 
work  supremely  pacific,  constitutes  a  real  confederation  of  the  nations, 
the  representatives  of  which  to-day  turn  their  eyes  to  the  international 
monument  and  express  their  gratitude  to  the  master  who  created  it. 

A  number  of  restricted  unions  have  been  formed  for  special  pur- 
poses. The  objects  for  which  they  were  founded  are  in  no  way 
inconsistent  with  the  purposes  and  activities  of  the  general  union, 
and  all  of  them  make  use  of  the  international  bureau  as  their 
agent.  There  are  also  a  great  many  treaties  between  individual 
countries  concerning  such  matters  as  special  postage  rates.  The 
following  restricted  unions  are  now  in  existence :  first,  the  union 
for  the  exchange  of  money  orders,  founded  in  1878  and  comprising 
at  present  thirty-three  states ;  second,  the  union  for  the  trans- 
mission of  packages  of  declared  value  registered  and  insured, 
founded  at  the  same  time  and  comprising  thirty  members  ;  third, 
a  parcels-post  union,  founded  in  1880,  with  a  present  membership 
of  thirty-nine  states ;  fourth,  a  union  for  the  collection  of  payments 
through  the  postal  service,  founded  in  1885,  with  twenty-one 
members ;  fifth,  a  union  for  the  use  of  books  of  identity,  with 
twenty  members ;  and  sixth,  the  union  for  facilitating  subscription 
to  periodicals  through  the  postal  administration,  with  twenty-four 
members.  The  unions  admit  new  members  upon  application. 
Their  membership  is  constantly  increasing,  and  most  of  them  will 
ultimately  coalesce  with  the  general  union  as  their  object  becomes 
more  universally  important.  Meetings  of  these  restricted  unions 
are  usually  held  together  with  the  congresses  of  the  universal 
postal  union.  The  United  States  is  not  a  member  of  any  of  these 
restricted  unions,  though  it  has  made  special  arrangements  with 
some  countries,  such  as  Canada,  Mexico,  Great  Britain,  and 
Germany,  respecting  lower  rates  of  postage  and  other  postal 
matters. 

431 


§  5]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

§  5.  The  International  Union  of  Railway  Freight  Transportation.1 
— From  the  earliest  days  of  railway  development  in  Europe  the  ne- 
cessity for  international  arrangements  with  respect  to  the  transit  of 
merchandise  from  one  country  to  another  was  apparent.  As  early 
as  1847  there  was  founded  the  union  of  German  railway  adminis- 
trations, which  is  still  in  existence,  comprising  one  hundred  eight 
administrations  in  Germany,  Austria,  Hungary,  Holland,  Belgium, 
Roumania,  and  Russia.  The  affairs  of  the  union  are  adminis- 
tered through  the  royal  railway  "  direction  "  at  Berlin,  and  every 
two  years  there  is  a  general  meeting  for  the  revision  of  the  regula- 
tions. The  work  of  the  conference  is  prepared  by  eight  standing 
committees  on  various  branches  of  the  service,  such  as  freight 
traffic,  passenger  traffic,  and  exchange  of  cars. 

The  idea  of  a  more  general  union  for  railway  transportation  was 
first  suggested  by  two  experts,  de  Seigneux  and  Christ,  of  Switzer- 
land, who  petitioned  the  Swiss  federal  council  to  call  an  inter- 
national conference.  Preliminary  plans  for  such  a  union  were 
worked  out  in  Switzerland  and  in  Germany,  and  in  1878  the  first 
conference  met  at  Berne.  It  was  composed  of  expert  delegates 
of  the  following  countries  :  Germany,  Austria,  Hungary,  Belgium, 
France,  Italy,  Luxemburg,  the  Netherlands,  Russia,  and  Switzer- 
land. The  two  prime  movers  for  the  conference  acted  as  its  secre- 
taries. In  a  session  occupying  a  month,  the  conference,  on  the 
basis  of  the  preliminary  studies,  worked  out  the  text  of  a  convention 
concerning  railway  freight  traffic,  a  convention  creating  an  inter- 
national commission,  and  supplementary  ordinances.  The  results 
of  these  labors  were  referred  to  the  various  governments  which  had 
been  represented  at  the  conference.  They  were  carefully  studied 
by  the  administrations  concerned,  and  memorials  suggesting  im- 
provements and  modifications  were  handed  in  by  the  latter.  A 
second  conference  was  convened  in  1881.  It  also  met  at  Bern, 
and  the  same  powers  were  represented.  This  conference  intro- 
duced a  number  of  important  modifications  in  the  convention.    It 

1  "Proces-verbaux  des  deliberations  de  la  conference  reunie  a,  Berne  au 
sujet  d'une  convention  internationale  en  matiere  de  transports  par  chemins 
de  fer",  Bern,  1878,  1881,  1886;  "Congres  international  des  chemins  de 
fer,  comptes  rendus",_at  the  dates  and  places  of  various  conferences; 
"Das  internationale  Ubereinkommen  iiber  den  Eisenbahn-  und  Pracht- 
verkehr",  Bern,  1901;  " Zeitschrift  fur  den  internationalen  Eisen- 
bahntransport ",  Bern,  since  1893;  Rosenthal,  Ed.,  "Internationales 
Kisenbahnfrachtreeht ",  Jena,  1894;  Olivier,  E.,  "Les  chemins  de  fer  en 
droit  internat.",  Paris,  1885;  Eger,  G.,  "Das  internationale  Uberein- 
kommen, etc.",  Breslau,  1893;  Meili,  "Das  Recht  der  Verkehrs-  und 
Transpqrtanstalten ",  1888;  Gerstner,  Th.,  "Der  neueste  Stand  des 
Berner  Ubereinkommens",  Berlin,  1901 ;  "Bulletin  du  Congres  internat. 
des  chemins  de  fer  ",  Brussels. 

432 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  5 

suggested  the  creation  of  a  central  bureau  in  place  of  the  commis- 
sion provided  for  by  the  first  conference.  So  careful  were  the 
administrations  and  governments  interested  that  even  yet  they 
were  not  ready  to  accept  the  results  of  all  these  labors.  After  addi- 
tional consideration  a  third  conference  met  at  Bern  in  1886,  which 
molded  the  convention  and  the  regulations  into  their  final  form. 
It  also  adopted  a  protocol  for  the  holding  of  a  final  conference  of 
diplomatic  representatives  at  which  the  convention  might  receive 
formal  sanction.  This  meeting  ultimately  took  place  in  1890. 
It  accepted  the  convention  as  adopted  by  the  third  conference, 
with  some  minor  changes.  Ratifications  were  exchanged  on 
September  30,  1892,  and  the  union  as  well  as  its  central  bureau 
began  operations  on  January  1,  1S93. 

The  main  portion  of  the  convention  thus  carefully  worked  out 
by  the  best  expert  talent  of  continental  Europe  is  composed  of  a 
statement  of  general  principles  as  well  as  of  more  detailed  rules 
concerning  the  transportation  of  railway  freight  from  one  country 
to  another.  The  fundamental  principle  established  by  the  con- 
vention is  that  transportation  is  obligatory,  and  that  therefore  no 
article  of  ordinary  merchandise  can  be  refused  acceptance.  Among 
the  chief  matters  included  are  the  continuity  of  transportation 
under  a  single  bill  of  lading,  the  form  of  which  is  determined  by  the 
convention  ;  uniform  regulations  with  respect  to  packing  and  to  the 
transport  of  dangerous  substances  and  breakable  articles ;  the 
responsibility  of  railway  administrations,  in  international  freight 
transportation,  for  delays,  losses,  and  damages  to  goods.  The 
competent  tribunal  for  the  trial  of  railway  cases  is  that  of  the 
domicile  of  the  company  or  administration  affected.  Judgments 
are  however  made  executory  in  any  of  the  contracting  countries, 
without  a  revision  of  the  substance  of  the  litigation.  The  arbitra- 
tion of  controversies  between  different  administrations  is  also 
provided  for.  The  inclusion  of  passenger  traffic  in  the  convention, 
though  suggested,  was  not  seriously  considered  at  the  time  because 
of  the  feeling  that  to  introduce  so  difficult  a  matter  might  greatly 
embarrass  the  achievement  of  a  plan  for  united  action. 

The  organization  of  the  union  as  determined  by  the  convention 
is  as  follows :  The  administrative  organ  is  the  central  bureau, 
which  is  located  at  Bern.  Its  functions  are,  first,  to  receive  com- 
munications from  the  contracting  states  and  from  the  railway 
administrations  interested,  and  to  transmit  them  to  other  states 
and  administrations ;  second,  to  gather,  arrange,  and  publish 
information  of  all  kinds  which  may  be  important  to  the  interna- 

433 


§  5]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

tional  freight  service ;  third,  at  the  demand  of  parties,  to  pro- 
nounce arbitral  sentences  on  controversies  which  may  arise  between 
different  railways ;  fourth,  to  give  due  form  to  suggestions  for  the 
modification  of  the  present  convention,  and  to  propose  to  the  treaty 
states  the  calling  of  a  new  conference ;  fifth,  to  facilitate  between 
the  different  administrations  financial  operations  necessitated  by 
the  international  freight  service,  such  as  the  collection  of  arrears, 
and  the  maintenance  of  stable  credit  relations  among  the  various 
railways.  The  bureau,  therefore,  acts  as  agent  for  the  liquidation 
of  accounts  due  from  one  railway  administration  to  another,  and 
the  method  of  demand  and  collection,  as  well  as  the  responsibility 
of  the  respective  states  for  such  dues,  are  regulated  in  detail  by  the 
"  reglement."  The  central  office  also  edits  an  authoritative  list 
of  railway  lines  with  international  connections.  In  the  special 
"  reglement  "  for  the  central  bureau  the  federal  council  of  Switzer- 
land is  given  authority  to  organize  and  supervise  that  institution. 
The  expenses  of  the  bureau  are  not  to  exceed  one  hundred  thousand 
francs  per  year  ;  they  are  borne  by  the  contracting  states  in  propor- 
tion to  the  length  of  their  railway  lines,  which  form  part  of  the 
international  service.  The  central  office  is  authorized  to  issue  a 
publication  in  French  and  German  ("  Zeitschrift  fur  den  inter- 
nationalen  Eisenbahntransport  "  ;  "  Bulletin  des  transports  inter- 
nationaux  par  chemins  de  fer  "). 

In  agreement  with  the  terms  of  the  convention,  the  Swiss  federal 
council  has  established  a  central  bureau  composed  of  a  director,  a 
vice  director,  a  juristic  and  a  technical  secretary,  and  the  necessary 
clerical  personnel.  The  international  office,  like  the  similar  bureaus 
of  the  postal  and  the  telegraph  union,  is  placed  under  the  direct 
supervision  of  the  Swiss  Department  of  Post  Offices  and  Railways, 
and  the  general  regulations  made  for  these  bureaus  are  also  made 
applicable  in  this  case.  The  most  striking  function  of  the  central 
office  is  that  of  pronouncing  judgment  in  controversies  between  dif- 
ferent railway  administrations.  According  to  the  ordinance  of  the 
federal  council,  the  court  in  such  cases  is  composed  of  the  director 
of  the  bureau  and  two  arbitrators.  The  latter,  as  well  as  two  substi- 
tutes, are  appointed  by  the  federal  council.  At  the  desire  of  the 
parties,  or  in  cases  of  small  importance,  the  director  himself  may  act 
as  judge  without  the  assistance  of  other  referees.  The  control  of 
the  steps  of  the  arbitral  procedure  is  in  his  hands  and  he  also  pre- 
sides in  the  court.  In  case  of  disagreement  between  him  and  the 
arbitrators,  he  may  call  in  the  two  substitutes,  and  should  there  be 
an  equality  of  votes,  his  opinion  is  decisive.     The  services  of  this 

434 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  5 

tribunal  are  gratuitous  as  far  as  the  parties  to  the  controversy  are 
concerned.  The  judicial  function  of  the  central  office  has  been 
appealed  to  in  numerous  cases.  Prominent  experts  have  acted  as 
arbitrators,  perplexing  controversies  have  been  settled,  and  the 
arrangement  has  given  general  satisfaction. 

The  first  conference  for  the  revision  of  the  convention  took  place 
in  Paris  in  1896.  The  modifications  which  it  introduced  were  of  a 
technical  nature.  After  prolonged  negotiations  they  finally  went 
into  effect  in  October,  1901.  On  account  of  these  delays  a  long 
period  elapsed  between  the  first  and  second  revision  conferences, 
the  latter  of  which  did  not  meet  until  1905.  The  feeling  at  this 
time  was  that,  the  convention  having  proved  very  acceptable  in 
detail  and  successful  in  its  operations,  and  its  provisions  having 
entered  into  the  administrative  practices  of  all  the  countries  con- 
cerned, changes  should  be  made  only  with  great  care.  Future 
conferences  should  not  consider  matters  which  have  not  been  care- 
fully examined  by  the  contracting  parties  before  the  conference, 
with  a  view  to  ascertaining  the  bearing  of  new  propositions  upon 
their  respective  systems  and  instructing  their  delegates  accord- 
ingly. The  conference  concluded  that  it  would  be  sufficient  to 
have  a  general  meeting  once  in  five  years  instead  of  every  three 
years  as  provided  in  the  original  treaty.  Though  important 
modifications  were  introduced  in  the  technical  details  of  the 
convention,  they  did  not  affect  the  organization  of  the  union.  The 
annual  budget  of  the  central  office  was  increased  to  one  hundred 
ten  thousand  francs,  and  arrangements  were  made  for  instituting  a 
pensioning  system  for  its  officials  and  employees. 

At  this  conference  an  effort  was  made  to  have  the  arbitral  func- 
tion of  the  central  office  extended  to  controversies  between  the 
railways  and  the  general  public.  This  change  was,  however,  not 
sanctioned,  though  the  conference  declared  that  officials  of  the 
central  bureau  might  personally  act  as  arbitrators.  But  such 
judgments  are  not  to  be  published  in  the  official  bulletin.  Several 
other  proposals  failed  of  adoption.  The  Swiss  federal  council 
favored  the  extension  of  the  union  to  the  transportation  of  passen- 
gers and  baggage.  The  Russian  government  desired  to  have  the 
bureau  instructed  to  work  out  and  publish  a  complete  statistical 
report  on  international  railways,  their  traffic  and  operation.  The 
latter  proposition  was  not  accepted  because  the  extent  and  cost  of 
the  undertaking  were  not  perfectly  clear  to  the  conference,  while 
the  former  appeared  to  necessitate  previous  negotiations  among 
the  governments  concerned.     The  idea  of  making  an  international 

435 


§  5]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

agreement  concerning  passenger  traffic  was  however  taken  up 
again  by  the  Swiss  federal  council,  which,  on  February  9,  1909, 
resolved  to  submit  to  the  states  who  are  members  of  the  inter- 
national union  a  draft  treaty  concerning  this  subject.  This  con- 
vention is  at  the  present  time  being  considered  by  the  member 
states.  It  includes  international  arrangements  concerning  the 
carriage  of  passengers  from  country  to  country,  as  well  as  the  trans- 
port of  baggage  and  of  express  parcels.  Its  adoption,  which  is 
considered  a  question  of  only  a  short  time,  will  bring  the  entire 
railway  traffic  of  the  principal  states  of  continental  Europe  within 
the  realm  of  international  agreement  and  regulation.  The  codifi- 
cation of  the  international  railway  law  concerning  freight  has  been 
in  every  way  successful,  facilitating  commerce  and  simplifying 
the  work  of  the  various  administrations  concerned. 

While  the  union  under  discussion  comprises  only  states  of  conti- 
nental Europe,  there  is  an  organization  of  a  semipublic  nature,  the 
International  Association  of  Railway  Congresses,  which  includes  a 
much  larger  number  of  nations.  It  was  founded  in  1885,  for  the 
purpose  of  establishing  an  interchange  of  experience  in  railway 
management,  and  its  membership  now  consists  of  forty-eight 
governments  and  four  hundred  thirteen  railway  administrations. 
The  seventh  congress  was  held  at  Washington  in  1905 ;  the  eighth, 
at  Bern  in  1910. 

A  convention  was  adopted  by  an  international  conference  at 
Bern  in  1882,  for  the  purpose  of  securing  uniformity  in  the  technic 
of  railway  administration.  Two  subsequent  conferences,  in  1886 
and  in  1907,  continued  this  work.  Eleven  continental  European 
states  have  taken  part  in  these  conferences  and  ratified  one  or  more 
of  the  conventions.  The  latter  deal  specifically  with  such  sub- 
jects as  the  gauge  of  railways,  the  character  of  through  carriages, 
and  the  construction  and  maintenance  of  rolling  stock. 

§  6.  Automobile  Conference.  —  In  October,  1909,  there  was 
held  a  conference,  at  which  delegates  from  eighteen  countries  were 
present,  for  the  purpose  of  working  out  a  convention  embodying 
international  regulations  for  motor  cars.  The  principal  countries 
of  Europe,  as  well  as  the  United  States,  were  represented  by  official 
delegates.  The  convention  adopted  lays  down  the  conditions  to 
be  fulfilled  by  automobiles  and  by  their  drivers  before  international 
road  certificates  may  be  granted  to  them.  It  controls  the  issuance 
and  validity  of  these  certificates,  and  requires  that  each  motor 
car  shall  carry,  for  purposes  of  identification,  its  number,  as  well  as 
a  large-sized  letter  establishing  its  nationality.     Moreover,  rules 

436 


Chap.   XII]  INTERNATIONAL  expert  unions  [§  7 

with  respect  to  the  position  of  signposts  on  the  public  roads  are 
laid  down,  and  it  is  provided  that  in  the  meeting  and  passing  of 
vehicles,  the  customs  of  the  locality  in  which  the  driver  finds 
himself  must  be  strictly  respected.  This  convention  may  be 
looked  upon  as  an  administrative  arrangement.  The  delegates  of 
some  of  the  countries  did  not  represent  the  department  of  foreign 
affairs  but  another  administrative  department  of  their  government. 
While  such  delegates  do  not  have  a  formal  right  to  bind  their 
country  by  signing  the  treaty,  their  participation  will  ordinarily 
assure  the  enforcement  of  the  convention  by  the  administrations 
which  they  represented.  Arrangements  of  this  kind  have  been 
entered  into  at  other  times,  as,  for  instance,  in  the  case  of  the  South 
American  agreement  respecting  dactyloscopy,  which  is  discussed 
below.  The  convention  was  signed  by  the  delegates  of  sixteen  gov- 
ernments, and  by  April,  1910,  it  had  been  formally  ratified  by  the  fol- 
lowing :  France,  Germany,  Austria-Hungary,  Belgium,  Spain,  Great 
Britain,  Italy,  and  Monaco  ;  so  that  it  came  into  force  May  1,  1910. 

§  7.  Navigation.1  —  The  methods  and  rules  of  navigation  on 
the  high  seas  are  a  matter  in  which  naturally  all  seafaring  nations 
are  interested.  It  is,  therefore,  not  surprising  that  signals  and 
routes  have  been  regulated  to  a  certain  extent  by  international 
cooperation.  A  signal  code  was  first  adopted  by  England  and 
France  in  1864.  Other  nations  from  time  to  time  joined  in  accept- 
ing this  code,  which  was  given  a  thorough  revision  in  1899.  At 
the  present  time  forty  states  have  adopted  it.  Through  the  use  of 
flags  of  various  sizes,  forms,  and  colors,  ships  are  enabled  to  com- 
municate with  each  other,  and  thus  a  veritable  international  sign 
language  has  been  created. 

England  and  France  also  led  the  way  in  the  adoption  of  conven- 
tional rules  with  respect  to  routes  of  navigation,  as  well  as  night 
and  fog  signals.  These  rules  also  have  been  remodeled  from  time 
to  time,  especially  at  the  conference  of  Washington  in  1889.  They 
are  at  present  accepted  by  thirty  states,  and  though  their  observ- 
ance has  not  been  made  obligatory  on  ships,  they  are  as  a  matter 
of  fact  generally  observed  by  navigators.2 

1  "Protocol  and  Proceedings,  International  Marine  Conference,  1889  ", 
Washington,  1890;  "Bulletin  du  Comite  maritime  international", 
Antwerp;  "Revue  internat.  de  droit  marit.",  Vol.  XIX,  pp.  800,  937; 
"Ann.  de  droit  commerc",  Vol.  XVIII,  p.  323;  Govare,  P.,  in  "Revue 
de  droit  international  prive",  Vol.  I,  p.  593;  Fromageot,  H.,  "Projet  de 
creation  d'un  bureau  international  de  la  marine  ",  Paris,  1902. 

2  [They  are  now  to  be  found  in  U.  S.  Revised  Statutes,  §  4233,  and  in  the 
British  Merchant  Shipping  Act  of  1894  (St.  57-58  Vict.,  c.  60) ;  the  first 
British  Act  was  that  of  1846  (St.  9-10  Vict.,  c.  100).  See  Marsden, 
"Collisions  at  Sea",  4th  ed.,  1897,  p.  371.  —  Ed.] 

437 


§  7]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

The  work  of  harmonizing  and  eventually  of  codifying  inter- 
national maritime  law  has  been  discussed  at  the  annual  conferences 
of  the  International  Maritime  Committee,  which  have  taken  place 
regularly  since  1896.  The  committee  is  the  central  organ  of 
national  associations  in  twelve  leading  states ;  it  has  its  seat  in 
Antwerp  and  publishes  a  bulletin.  Another  body  dealing  with 
maritime  interests  is  the  International  Association  of  the  Marine, 
which  was  founded  on  French  initiative.  At  its  meeting  at  Lisbon 
in  1904,  on  which  occasion  the  delegates  of  eight  governments 
participated,  the  association  voted  for  the  establishment  of  an 
international  maritime  bureau.  These  private  and  semipublic 
endeavors  have  been  supplemented  by  the  work  of  an  interna- 
tional conference  on  maritime  law,  convened  at  Brussels  in  1905 
on  the  invitation  of  the  Belgian  government.  At  this  conference 
thirteen  powers  were  represented  and  a  convention  project  was 
adopted,  covering  the  law  of  salvage  and  collision.  This  conven- 
tion was  further  discussed  and  elaborated  at  a  second  conference 
held  at  Brussels  in  1909. 

There  also  exists  a  great  semipublic  union  of  navigation  interests, 
the  Permanent  International  Association  of  Navigation  Congresses, 
which  was  founded  in  1900.  It  numbers  at  present  among  its  asso- 
ciates 25  governments  and  1390  private  organizations.  Its  annual 
budget  is  75,000  francs,  of  which  the  states  contributed  60,000 
francs. 

II.    Economic  Interests 

§  8.  The  Metric  Union.1  —  One  of  the  most  serious  inconven- 
iences of  international  commerce  arises  from  a  difference  in  the 
standards  of  weights  and  measures.  The  adoption  of  a  uniform 
standard  was  therefore  urged  at  an  early  date  by  the  representa- 
tives of  commerce  and  by  scientific  associations.  In  1867  the 
international  geodetic  conference  at  Berlin  pronounced  in  favor  of 
the  universal  use  of  the  metric  system.  It  also  suggested  the 
creation  of  an  international  commission  which  should  supervise 
the  keeping  and  duplication  of  standard  units  of  measure,  in  order 
to  avoid  a  gradual  divergence  among  the  various  national  stand- 
ards. In  1869  the  French  government  created  a  metric  commis- 
sion ("  Commission  du  metre  "),  composed  of  French  and  foreign 
members,  for  the  purpose  of  advancing  unity  of  measurements. 
A  conference  called  by  this  commission  discussed  the  scientific 

1  Bigourdan,  G.,  "Le  systeme  metrique  des  poids  et  mesures  ",  Paris, 
1901 ;    Moynier,  op.  cit.,  p.  57;   Olivarl,  op.  cit.,  Vol.  II,  p.  477. 

438 


CHAP.    XII]  INTERNATIONAL    EXPERT    UNIONS  [§  9 

methods  required  for  assuring  the  stability  of  standards,  and  sug- 
gested the  creation  of  an  international  bureau.  For  the  purpose 
of  carrying  out  these  suggestions  a  diplomatic  conference  was  con- 
voked in  Paris  in  1875,  which  adopted  a  treaty  on  the  subject. 
Under  this  treaty  there  was  created  a  bureau  of  weights  and  meas- 
ures, installed  at  Sevres,  near  Paris.  It  is  the  function  of  this 
bureau  to  preserve  the  original  standards  of  measurement,  and, 
upon  request,  to  furnish  accurate  copies  to  governments  and  scien- 
tific institutions.  The  bureau  is  under  the  supervision  of  a  com- 
mittee representing  the  states  who  are  members  of  the  union. 
From  time  to  time  there  is  held  a  general  conference  composed  of 
delegates  of  the  treaty  states.  The  conference  confines  itself  to 
the  discussion  of  scientific  methods  for  perfecting  the  accurate 
reproduction  of  standards  of  measurement.  The  bureau  has 
become  an  important  scientific  center  for  metrological  investiga- 
tions. It  is  supported  by  contributions  from  the  treaty  states, 
and  by  fees  received  for  reproductions  of  the  prototype  measures. 
The  French  government  has  dealt  in  a  very  liberal  spirit  with  this 
institution.  Not  only  are  the  buildings  occupied  by  the  bureau  free 
from  taxation,  but  the  foreign  members  of  the  commission  who 
reside  at  Paris  are  allowed  a  like  exemption.  Moreover,  the  bureau 
at  Sevres  has  always  had  some  foreigners  on  its  staff. 

§  9.  Patents,  Trade-marks,  and  Copyrights.1  —  As  a  result  of 
long-continued  discussion  on  the  part  of  persons  and  associations 
interested  in  the  development  of  industrial  inventions,  the  French 
government,  in  1880,  issued  an  invitation  for  a  conference  on  the 
protection  of  industrial  property,  to  be  held  at  Paris.  At  a  second 
conference  held  at  the  same  place  in  1883  there  was  adopted  and 
signed  by  the  representatives  of  eleven  states  a  convention  for  the 
protection  of  patent  rights  and  trade-marks.     The  purpose  of  the 

1  Bergne,  J.,  "Internat,  Copyrights  Union",  L.Q.R.,  Vol.  Ill,  P-(<14; 
Briggs,  Wm.,  "Internat.  Copyright",  London,  1906;  Darras,  A.,  "Du 
droit  des  auteurs  et  des  artistes  dans  les  rapports  internatiOnaux  ",  1887; 
Delzons,  in  "Revue  des  deux  mondes  ",  Vol.  XLVIII,  p.  895;  Dubois,  J., 
"De  la  revision  en  1908  de  la  convention  de  Berne",  "Journ.  de  droit 
international  prive",  Vol.  XXXVI,  p.  661;  Frey-Godct,  "La  protection 
Internationale  des  marques  industriels  ",  in  "Zeitschrift  fiir  Volkerrecht 
und  Bundesstaatsrecht ",  Vol.  I,  p.  329;  Olivart,  op.  cit.,  Vol.  II,  p.  402; 
Poinsard,  L.,  in  "Annales  des  sciences  politiques ",  Vol.  XXV,  p.  67; 
Soldan,  "L'Union  intern,  pour  la  protection  des  ceuvres  litteraires  et  artis- 
tiques",  1887;  "Annuaire  de  l'Association  Internationale  pour  la  pro- 
tection de  la  propriete  industrielle  "  ;  "Recueil  des  conventions  et  traites 
eoncernant  la  propriete  litteraire  et  artistique",  published  by  the  inter- 
national bureau,  Bern,  1903  ;  "Paris  Copyrights  Congress  ",  in  "Nation  ", 
Vol.  LXXI,  p.  226;  U.  S.  House  of  Repr.  Doc.  1208,  Sixtieth  Congress; 
"International  Copyright  Union,  Bulletin  No.  13",  Copyright  Office, 
Washington,  1908. 

439 


§  9]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

union  thus  formed  was  not  the  complete  unification  of  the  respec- 
tive laws  of  the  member  states,  but  rather  the  creation  of  adminis- 
trative rules  by  which  the  citizens  of  one  state  would  be  permitted, 
without  expensive  formalities,  to  come  under  the  protection  of  the 
patent  and  trade-mark  laws  of  the  other  contracting  states.  In 
the  words  of  the  convention,  "  The  subjects  or  citizens  of  each  of 
the  contracting  states,  as  well  as  subjects  and  citizens  of  states 
which  are  not  parties  to  the  union,  who  are  domiciled  or  have  indus- 
trial or  commercial  establishments  within  the  territory  of  any  state 
of  the  union,  shall  enjoy  in  all  the  other  states  of  the  union  the 
advantages  which  their  respective  laws  accord  at  present  or  shall 
accord  in  future  to  their  own  nationals.  Consequently  they  will 
have  the  same  protection  as  the  latter  and  the  same  legal  recourse 
against  any  infringement  of  their  rights,  upon  having  complied 
with  the  formalities  and  conditions  imposed  upon  nationals  by  the 
internal  legislation  of  each  state." 

An  administrative  arrangement  such  as  this  might  of  course  lead 
the  way  to  a  gradual  assimilation  of  the  various  systems  of  national 
patent  law  themselves,  although  this  would  not  be  its  immediate 
object.  A  central  organ  of  the  union,  the  international  bureau  of 
industrial  property,  was  established  at  Bern.  The  functions  of  this 
office  were  at  first  confined  entirely  to  correspondence,  investigation, 
and  publication.  It  was  charged  to  bring  together  statistics  and 
other  useful  information,  to  issue  a  periodical  ("  La  propriete 
industrielle  "),  and  to  prepare  preliminary  studies  for  the  confer- 
ences. The  suggestion  to  make  it  an  office  for  the  registration  of 
trade-marks  and  patents  did  not  at  first  find  favor.  At  the  second 
re  visionary  conference,  held  at  Madrid  in  1891,  the  proposal  for  a 
trade-mark  registry  was  repeated.  Though  this  arrangement  is 
not  as  yet  acceptable  to  all  the  treaty  states,  it  has  been  adopted 
by  ten  of  them,  who  thus  form  a  restricted  union  under  the  more 
general  convention.  Under  this  system  the  registration,  at  the 
international  bureau,  of  a  trade-mark  already  registered  in  one  of 
the  treaty  states  has  the  effect  of  giving  protection  in  all  the  other 
contracting  states  without  any  further  special  registration  in  any 
of  them.  This  method  of  procedure  is  a  great  simplification,  and  it 
materially  reduces  the  expenses  of  industrial  companies  on  account 
of  trade-marks.  The  net  income  of  this  special  service  is  dis- 
tributed pro  rata  among  the  states  of  the  restricted  union.  This 
arrangement,  by  which  the  international  bureau  becomes  an  ad- 
ministrative organ  of  the  treaty  states,  is  admirable  for  its  direct- 
ness.    It  does  not  involve  any  change  in  the  national  law,  but 

440 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  9 

simply  entitles  the  person  or  firm  registering  a  trade-mark  to  what- 
ever protection  is  given  in  the  respective  treaty  state  to  this  form 
of  commercial  property.  Another  restricted  union  was  estab- 
lished at  the  Madrid  conference  among  eight  states,  for  the  pur- 
pose of  preventing  fraudulent  indications  of  the  place  of  origin  of 
merchandise. 

The  general  union  was  strengthened  in  1903  by  the  accession  of 
the  German  Empire,  which,  up  to  that  time,  had  held  aloof.  It 
comprises  at  the  present  time  seventeen  countries,  including  the 
United  States. 

The  formation  of  the  union  for  the  protection  of  industrial  prop- 
erty served  as  an  encouragement  to  those  men  who  desired  to  secure 
similar  international  privileges  to  works  of  art  and  literature.  An 
international  literary  and  artistic  society  had  been  formed  in  Paris 
in  1878  under  the  presidency  of  Victor  Hugo.  Its  main  purpose 
was  to  bring  about  a  more  complete  protection  of  literary  property. 
At  a  conference  held  at  Bern,  in  1883,  the  association  worked  out  a 
general  project  of  a  convention  for  the  international  protection  of 
copyrights.  Thereupon  the  Swiss  government  was  prevailed  upon 
to  call  an  official  conference  for  the  purpose  of  discussing  and  adopt- 
ing a  convention  of  this  kind.  Three  diplomatic  conferences  were 
held  in  successive  years,  beginning  in  1884,  which  resulted  in  the 
formation  of  the  international  union  for  the  protection  of  literary 
and  artistic  property,  and  the  adoption  of  the  convention  of  1886  on 
international  copyright.  The  conditions  existing  before  the  crea- 
tion of  the  union  were  in  every  way  unsatisfactory.  The  systems  of 
legislation  of  the  different  countries  in  matters  of  copyright  were 
conflicting.  Some  of  them  granted  no  protection  whatever  to 
foreign  authors ;  any  privileges  that  had  been  secured  by  the  latter 
were  based  on  treaties  between  individual  countries,  which  differed 
greatly  from  one  another.  This  condition  was  much  improved 
by  the  adoption  of  the  Bern  convention  of  1886,  though  indeed  it 
constituted  only  a  first  step  in  the  evolution  of  a  satisfactory 
universal  law  of  copyright.  Such  a  law  is  not  at  present  feasible 
on  account  of  the  jealousy  of  individual  states  in  behalf  of  their 
own  legislation.  The  national  laws  we're  however  affected  in 
two  ways.  In  the  first  place,  the  convention  provided  that  authors 
who  are  citizens  of  one  of  the  contracting  countries  shall  have  their 
works  protected  in  all  the  others.  This  was  effected  without  a 
change  in  the  laws,  by  giving  an  author  such  protection  abroad  as 
the  existing  legislation  in  each  country  may  accord  to  its  citizens 
or  subjects.     But  in  addition  to  this,  certain  general  principles 

441 


§  9]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

were  laid  down  to  which  national  legislation  must  conform.  These 
latter  rules  constitute  the  beginning  of  a  uniform  system  of  copy- 
right law,  though  they  are  of  such  a  nature  as  still  to  leave  a  wide 
latitude  for  national  discretion.  The  main  principles,  established 
in  1886,  are  as  follows :  Writings,  music,  works  of  fine  art,  and 
scientific  designs  are  protected  for  a  time  which  must  not  exceed 
the  period  of  protection  accorded  either  in  the  country  of  origin 
or  in  the  country  in  which  protection  is  sought.  The  right  of 
translation  is  retained  by  the  author  for  a  period  of  ten  years 
after  the  publication  of  the  original.  Dramatic  works  are  pro- 
tected against  production  in  the  same  manner  and  for  the  same 
period  as  writings. 

A  conference  for  the  purpose  of  revising  the  Act  of  Bern  was 
held  at  Paris  in  1896.  It  worked  out  and  adopted  an  interpretative 
declaration  and  an  additional  act.  The  former  settled  a  number  of 
disputed  points  in  connection  with  the  first  convention.  The 
interpretations  adopted  were  not  satisfactory  to  Great  Britain  and 
were  not  ratified  by  that  country.  The  additional  act  advanced 
the  general  work  of  international  legislation  and  added  to  the 
principles  established  in  1886.  This  act  was  not  adopted  by 
Norway  nor  by  Haiti.  The  principles  established  in  the  additional 
Act  of  Paris  are  as  follows :  Posthumous  works  are  accorded  protec- 
tion. Authors  who  are  not  citizens  of  states  in  the  union  are 
personally  protected  when  once  their  works  have  been  published 
in,  and  receive  the  protection  of,  one  of  the  member  states.  In 
other  words,  it  is  not  the  publisher,  but  the  author,  who  is  intended 
to  have  the  benefit.  Architectural  works,  as  well  as  photographs, 
are  accorded  international  rights. 

In  November,  1908,  a  second  conference  of  revision  was  held  at 
Berlin.  It  was  a  very  important  congress,  attended  by  delegates  of 
the  fifteen  members  of  the  union,  as  well  as  of  nineteen  other  nations 
who,  though  not  members,  had  been  invited  by  the  German  govern- 
ment. The  latter  included  Argentina,  the  United  States,  and 
Pviissia.  The  conference  adopted  a  complete  code,  intended  to 
displace  the  former  conventions.  The  most  cardinal  change  made 
is  that,  while  under  the'convention  of  1886  foreign  authors  were 
protected  according  to  the  laws  of  their  own  country,  it  has  now 
been  established  that  the  manner  of  protection  abroad  shall  be 
governed  by  the  laws  of  the  country  in  which  it  is  sought.  This 
proposal  was  made  by  Germany  on  the  ground  that  the  problem 
of  ascertaining  theexact  copyright  law  of  other  countries  constitutes 
a  greal  difficulty  for  the  national  judges.     France  supported  the 

442 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  9 

proposal,  with  the  reservation  that  the  time  of  protection  should 
still  be  governed  by  the  laws  of  the  country  of  the  author,  because 
otherwise  the  countries  giving  the  longest  protection  would  be  at  a 
disadvantage.  The  German  proposal  was  adopted  by  the  confer- 
ence. Hereafter,  therefore,  each  country  will  protect  literary 
works  according  to  its  own  law.  It  was  further  enacted  that  the 
normal  time  of  protection  should  be  that  of  France,  extending  to 
fifty  years  after  the  author's  death ;  but  it  is  also  provided  that, 
if  this  duration  is  not  uniformly  adopted  by  all  the  countries  of  the 
union,  the  period  of  copyright  shall  not  exceed  the  time  fixed  by 
the  country  of  origin.  The  system  of  1908  approaches  more  closely 
the  ideal  of  universal  protection,  and  it  admits  foreigners  directly 
to  the  privileges  accorded  under  the  local  jurisdiction.  The  law 
of  international  copyright  was  further  developed  in  the  following 
manner :  x\rchitectural  drawings  are  to  be  universally  protected, 
whereas  heretofore  protection  was  made  dependent  upon  the  exist- 
ence of  national  legislation.  International  rights  are  also  given  to 
choreographic  pieces  and  pantomimes,  to  photographs,  and  to 
reproductions  of  music  on  mechanical  instruments.  An  attempt 
was  made  to  extend  the  privileges  of  the  union  to  works  of  decora- 
tive art,  or  art  applied  to  industry,  but  all  that  could  be  obtained 
was  protection  as  far  as  the  internal  legislation  of  each  country 
permits.  The  delegates  of  France,  Germany,  and  Italy  favored 
universal  rights  in  behalf  of  industrial  art,  viewing  the  latter  as 
an  expression  of  creative  thought  in  the  same  sense  as  applies  to 
the  fine  arts.  The  proposal  was  opposed  by  England  and  Switzer- 
land. The  law  relating  to  journalistic  writings  also  was  more 
definitely  settled.  Works  of  fiction  appearing  in  periodicals  are 
completely  protected.  Scientific,  literary,  artistic,  and  political 
articles  may  be  reproduced  unless  the  author  has  expressly  reserved 
his  right.  In  all  cases  the  duty  to  give  credit  to  the  source  is 
imposed.  News  items  are  not  accorded  any  protection.  The 
law,  as  here  stated,  had  in  its  main  features  been  settled  by  the  first 
convention.  The  convention  of  Berlin  completed,  the  work  and 
assimilated  political  articles  to  those  of  a  literary  character.  It 
will  be  apparent  from  the  above  that,  while  the  convention  of 
Berlin  grants  protection  according  to  the  law  of  the  country 
where  rights  are  sought,  it  also  continues  the  work  begun  before, 
of  making  the  legislative  norms  in  the  various  treaty  states  more 
and  more  harmonious  and  uniform. 

Though  the  convention  constitutes  a  universal  code,  it  is  rather  a 
model  to  which  future  development  will  conform,  than  an  act 

443 


§  9]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

whose  integral  acceptance  on  the  part  of  all  the  members  of  the 
union  is  assured.  The  convention  of  Berlin  declares,  in  Article 
27 :  "  The  present  convention  shall  replace,  in  the  relations  be- 
tween the  contracting  states,  the  convention  of  Bern  of  September 
9,  1886,  including  the  additional  article  and  the  formal  protocol 
of  the  same  day,  as  well  as  the  additional  act  and  the  interpretative 
declaration  of  May  4,  1896.  The  convention  and  acts  above  men- 
tioned shall  remain  in  force  in  the  relations  with  the  states  which 
do  not  ratify  the  present  convention.  The  states  signatory  to  the 
present  convention  may,  at  the  time  of  the  exchange  of  ratifications, 
declare  that  they  intend,  upon  such  and  such  a  point,  still  to  remain 
bound  by  the  provisions  of  the  conventions  to  which  they  have 
previously  subscribed."  The  convention  was  signed  by  the  dele- 
gates of  fifteen  states.  According  to  its  terms,  as  seen  above,  it 
may  be  adopted  with  reservations,  or  even  the  former  conventions 
may  still  remain  in  force  in  toto  between  individual  members  of 
the  union.  Nevertheless  the  treaty  has  already  been  ratified  by 
nearly  all  the  members,  so  that  it  may,  before  long,  entirely  displace 
the  earlier  conventions.  The  United  States  is  not  a  member  of 
this  union.1  The  creation  of  a  new  convention  by  the  union  always 
gives  an  impetus  to  the  making  of  more  advanced  treaties  between 
individual  nations.  Thus,  among  such  countries  as  France,  Ger- 
many, Italy,  and  Belgium,  a  number  of  treaties  have  been  made 
which  develop  their  copyright  law  in  the  direction  favored  by  the 
international  union. 

The  union,  in  18S8,  created  a  bureau  which  acts  as  a  central 
organ  of  information  and  publishes  a  journal  ("  Le  droit  d'auteur"). 
In  1892  this  office  was  united  with  the  bureau  of  industrial  prop- 
erty. The  associated  bureaus  are  under  the  control  of  the  Swiss 
1  >epartment  of  Foreign  Affairs.  Their  expenses  are  borne  by  the 
treaty  states  upon  a  basis  of  unit  ratios.  The  relations  of  these 
bureaus  to  the  governments  and  national  administrations  are,  of 
course,  not  so  direct  as  in  the  case  of  the  telegraph,the  postal,  and 
the  railway-freight  bureaus,  nor  do  they  possess  any  arbitral  func- 
tions;  but  their  work  in  bringing  together  authoritative  informa- 
tion upon  the  patent  and  copyright  laws  of  the  various  nations  lias 
been  of  great  value  to  the  governments  and  to  persons  specially 

1  Tho  manner  in  which  the  attitude  of  the  United  States  impresses  the 
world  is  shown  by  such  statements  as  the  following:  "The  United  States, 
in  facl ,  subordinates  I  he  primordial  righl  <>r  authors  to  t  he  narrow  interest, 
of  American  printers  and  (heir  employers.  It-  may  be  said  without 
exaggeration  thai  this  is  a  situation  unworthy  of  a  great  people."  —  Leon 
Poinsard. 

Ill 


CHAP.    XT  I]  INTERNATIONAL    EXPERT   UNIONS  [§   10 

interested.  Movements  for  the  reform  of  national  legislation  have 
derived  their  information  from  these  international  organs.  The 
bureaus  have  a  very  small  personnel,  and  have  always  stayed  well 
within  their  modest  budget,  notwithstanding  the  volume  and  real 
importance  of  their  published  work. 

Union  for  the  Publication  of  Customs  Tariffs.1  —  In  1890  an 
international  bureau  was  created  for  the  authoritative  collection 
and  publication  of  customs  tariffs.  It  is  situated  at  Brussels,  and 
is  under  the  control  of  the  Belgian  administration.  Its  duty  is  to 
supply,  with  the  least  delay  possible,  copies  of  laws  and  administra- 
tive ordinances  referring  to  customs  tariffs,  and  to  cause  the  same 
to  be  published  in  its  own  periodical  ("  The  International  Customs 
Bulletin").  Forty-one  states  are  parties  to  this  arrangement; 
they  divide  among  themselves  the  expenses  of  the  bureau,  which 
has  an  annual  budget  of  125,000  francs.  In  1894  it  was  attempted, 
upon  the  initiative  of  the  Swiss  government,  to  establish  a  similar 
office  for  the  publication  of  treaties.  Sixteen  governments  were 
represented  at  a  conference  held  at  Bern,  where  the  project  of  the 
Swiss  government  was  discussed.  On  account  of  the  lack  of  direct 
authorization  on  the  part  of  several  delegates,  the  conference  did 
not  take  any  action,  but  referred  the  project  to  the  consideration 
of  the  various  governments. 

§  10.  Protection  of  Labor.2  —  The  efforts  which  have  been  made 
for  the  purpose  of  securing  agreements  for  the  protection  of  labor 
are  especially  instructive.  To  an  unusual  degree  private  and  state 
initiative  have  been  combined  and  intermingled  in  the  cooperation 
between  public  officials  and  private  experts  to  bring  about  an  inter- 
national understanding.  No  field  of  action  reveals  so  clearly  the 
limitations  of  international  arrangements  and  the  difficulties  in  the 
way  of  their  achievement,  nor,  on  the  other  hand,  shows  so  fully  the 
possibilities  inherent  in  them.     The  government  of   Switzerland 

1  "Acts  of  the  Conference  "  of  Brussels,  1888,  and  of  Bern,  1894,  in  "Ar- 
chives diplomatiques  ",  Paris. 

2  A  full  bibliography  is  given  by  F.  Dochoio  in  "Zeitschrifl  fur  Inter- 
nationales Privat-und  offentliches  Recht",  Leipzig,  1906;  Francke,  E., 
"Der  internat.  Arbeiterschutz,"  Dresden,  1903;  Account  of  the  Hern 
conference  with  process-verbal,  in  "Archives  diplomatiques",  L905, 
Vol.  Ill,  p.  271;  "Bulletin  de  l'Office  international  du  travail",  since 
1900;  Crick,  I)..  "La  Legislation  internationale  du  travail",  "Revue  de 
droit  international".  1905,  p.  432;  Armand-Hahn,  •/.  /'.,  in  "Annales  des 
sciences  politiques",  Vol.  XX,  p.  1">(>;  Jay,  A'..  "La  protection  legale  des 
travailleurs ",  Paris,  1904;  "Schriften  der  internationalen  Vereinigung 
fur  gesetzlichen  Arbeitschutz  ",  Jena,  1901-1906;  Bauer,  "International 
Labor  Office  ",  "  Economic  Journal",  !<)!):};  Raynaud,  B.,  "Droit  inter- 
national ouvrier",  Paris,  190t>;  Pic,  in  "Revue  generate  de  droit  inter- 
national", 1 007.  p.  4!).");  Malmiin,  F...  in  "Rev.  (Von.  internat.",  1906; 
Metin,  A.,  "Les  traites  ouvriers",  Paris,  1908. 

445 


§  10]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

deserves  the  credit  of  having  made  the  first  attempts  to  secure  an 
international  conference  on  labor  legislation,  after  the  matter  had 
been  repeatedly  considered  by  a  number  of  large  international 
congresses,  composed  of  delegates  of  labor  associations  and  of  other 
organized  bodies.  In  1889  the  Swiss  federal  council  addressed  an 
invitation  to  fourteen  European  powers,  requesting  them  to  send 
delegates  to  a  conference  for  the  purpose  of  discussing  certain 
definite  topics  concerning  labor  legislation.  The  suggestion  was 
favorably  received  by  the  majority  of  the  countries  addressed,  and 
the  federal  council  consequently  decided  to  send  out  formal  invita- 
tions. But  at  this  very  time  the  German  emperor  issued  two 
rescripts,  in  which  he  pronounced  in  favor  of  international  action  in 
labor  matters.  Correspondence  followed  between  Germany  and 
Switzerland,  and  the  smaller  country  yielded  to  the  German  Empire 
the  honor  of  calling  the  conference,  which  then  assembled  in  Berlin, 
in  March,  1890,  with  a  representation  of  fifteen  states.  Three 
committees  were  appointed  to  consider  (1)  work  in  mines,  (2)  Sun- 
day rest,  (3)  work  of  children,  young  workmen,  and  women. 
Though  Switzerland  proposed  the  conclusion  of  a  binding  conven- 
tion and  the  creation  of  a  central  bureau,  the  conference  did  not 
favor  the  taking  of  such  definite  measures  at  that  time.  The  only 
result  of  its  work  was  the  passage  of  resolutions  embodying  the 
opinion  of  the  delegates  on  certain  principles  to  be  followed  in  labor 
legislation. 

The  conference  thus  having  failed  to  produce  tangible  results  in 
the  form  of  a  treaty,  the  propaganda  for  international  labor  protec- 
tion was  taken  up  with  redoubled  energy  by  private  individuals  and 
associations.  In  1897  two  labor-legislation  congresses  were  held. 
The  congress  at  Zurich  was  composed  of  the  representatives  of 
labor  organizations.  Although  many  opposing  views  were  here 
represented,  the  delegates  found  it  possible  to  unite  upon  a  definite 
program  of  labor  legislation.  The  congress  which  met  in  Brussels 
in  the  same  year  (international  congress  of  labor  legislation)  was 
composed  largely  of  publicists  and  economists.  It  confined  itself 
entirely  to  discussion,  not  even  passing  resolutions.  After  the 
session,  however,  there  was  appointed  informally  a  committee  of 
three  members  for  the  purpose  of  finding  means  to  carry  on  the  work 
begun  in  the  congress.  The  committee  made  certain  arrange- 
ments with  the  Belgian  government  for  the  publication  of  an 
"  Annuaire  de  la  legislation  du  travail ",  but  the  political  conditions 
in  Belgium  were  not  favorable  to  a  further  pursuance  of  the  pur- 
poses of  this  group  of  men.     Other  national   committees   were 

446 


CHAP.    XI  I]  INTERNATIONAL    EXPERT   UNIONS  [§  10 

however  created,  and  the  French  committee  eventually  arranged 
for  a  conference,  which  was  held  at  Paris  during  the  exposition  of 

1900.  This  congress  occupied  itself  with  the  question  of  a  perma- 
nent organization.  It  was  decided  to  form  an  international  associa- 
tion, open  to  all  who  believed  in  protective  labor  legislation.  The 
association  was  to  be  composed  of  national  sections,  each  with  its 
separate  organization  and  autonomy.  The  governing  board  was 
to  be  a  commission  composed  of  two  delegates  from  each  section, 
together  with  the  representatives  of  governments  which  desired  to 
take  part  in  the  enterprise.  An  international  labor  office  was  es- 
tablished, whose  mission  it  is  to  publish,  in  French,  German,  and 
English,  periodic  reports  on  labor  legislation  in  all  countries ;  to 
furnish  information  on  labor  laws  to  members  of  the  association  ;  to 
assist  in  the  study  of  the  legislative  protection  of  labor,  as  well  as  in 
the  creation  of  a  systematic  body  of  international  labor  statistics. 
The  labor  office  is  located  at  Basel,  where  it  began  work  in  May, 

1901,  and  where  the  first  general  assembly  of  the  association  was 
held  in  September  of  the  same  year.  It  was  composed  of  delegates 
representing  the  national  sections  as  well  as  four  governments. 
This  assembly  expressed  the  opinion  that,  while  the  association 
itself  might  carry  on  an  active  propaganda  for  labor  legislation,  the 
bureau  should  confine  itself  to  an  objective  and  impartial  study  of 
labor  legislation  for  the  purpose  of  furnishing  an  absolutely  reliable 
basis  of  facts  and  statistics.  As  the  first  questions  for  discussion 
and  eventual  action  the  assembly  selected,  first,  industrial  night 
work  of  women ;  and,  second,  the  regulation  of  unhealthy  indus- 
tries, especially  those  using  white  lead  and  white  phosphorus. 

The  second  general  assembly  was  held  at  Cologne  in  1902.  On 
this  occasion  seven  national  sections  and  eight  governments  were 
represented.  The  assembly  considered  the  organization  and  the 
finances  of  the  central  office  as  well  as  the  two  questions  submitted 
by  the  previous  conference.  The  international  commission  was  in- 
structed to  take  steps  to  induce  the  various  governments  to  con- 
sider the  suppression  of  these  industrial  dangers.  The  commission, 
at  its  subsequent  meeting  at  Basel,  decided  to  appeal  to  the  Swiss 
federal  council  in  order  that  an  international  conference  might  be 
called  to  frame  a  treaty  on  these  matters.  Early  in  1905  invitations 
were  sent  out,  and  in  May  the  official  conference  met  at  Bern. 
Over  fifty  delegates  were  present,  representing  all  the  governments 
of  Europe,  with  the  exception  of  Russia,  Greece,  Roumania,  and 
Servia.  The  conference  took  up  the  discussion  of  the  two  questions 
which  had  been  formulated  and  prepared  by  the  assemblies  of  the 

447 


§   10]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

international  association.  Although  the  sessions  occupied  only 
eight  days,  the  discussions  were  earnest  and  many  different  points 
of  view  were  brought  out.  The  absence  of  Japan  interposed  special 
obstacles  to  the  adoption  of  a  convention  on  the  use  of  white 
phosphorus,  a  material  extensively  employed  in  the  Japanese 
match  industry.  The  convention  which  was  finally  adopted  on  this 
point  provided  that  after  January  1,  1911,  the  manufacture  and 
sale  of  matches  containing  white  phosphorus  was  to  be  forbidden. 
The  Japanese  government  was  to  be  invited  to  join  in  this  treaty 
before  December  31,  1907.  Eleven  out  of  the  fifteen  states  voted 
in  favor  of  this  agreement.  The  conference  also  adopted  a  protocol 
regulating  the  hours  of  night  work  for  women.  These  projects 
were  transformed  into  definite  conventions  by  a  diplomatic  con- 
ference which  met  in  December,  1906. 

A  study  of  the  widening  extent  of  the  white-phosphorus  prohibi- 
tion is  particularly  instructive  in  that  it  shows  the  reluctance  of 
governments  to  place  restrictions  upon  industry,  and  the  possibilities 
which  are  afforded  of  accomplishing  this  through  the  plan  of  inter- 
national cooperation  in  the  enactment  of  labor  laws.  The  agita- 
tion started  in  countries  where  the  match  industry  was  of  a  com- 
paratively insignificant  character,  and  where  the  evils  due  to  the 
use  of  white  phosphorus  outweighed  more  strongly  the  advantages 
attendant  upon  encouraging  the  business.  Such  countries  made  no 
opposition  to  the  restriction,  and  as  early  as  1874  Finland  and 
Denmark  had  prohibitive  legislation  and  had  been  quite  success- 
ful in  stamping  out  the  disease  of  necrosis.  Switzerland  fell  in 
line  in  1879,  the  Netherlands  in  1901,  and  Germany  in  1903.  By 
this  latter  period  substitutes  had  been  found,  so  that  the  use  of 
white  phosphorus  was  not  so  imperative ;  therefore  the  action  of 
Denmark,  Switzerland,  and  the  Netherlands  in  prohibiting  the 
importation  of  matches  of  this  material,  and  the  fact  that  Japan 
had  become  so  successful  a  rival  that  other  markets  were  practically 
excluded,  made  Germany  not  unwilling  to  prohibit  the  use  of  the 
poison  and  join  the  ranks  of  those  who  were  agitating  for  this 
humanitarian  legislation. 

Now  began  a  more  active  campaign  that  the  restrictions  which 
these  countries  had  imposed  on  this  industry  might  become  world- 
wide, and  thus  might  constitute  no  special  hardship  upon  home 
industries.  In  France  and  Roumania  the  manufacture  of  matches 
was  a  state  monopoly,  so  that  it  required  but  the  actual  substitution 
of  potash  for  white  phosphorus  to  accomplish  the  purpose, — a  step 
taken  in  1898.     A  special  prohibitory  law  was  there  unnecessary. 

448 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§   10 

The  agitation  for  the  extension  of  the  prohibition  resulted  in  its 
being  placed  on  the  program  for  discussion  at  the  Bern  conference 
of  1905 ;  the  convention  adopted  was  promptly  signed  by  Ger- 
many, Denmark,  France,  Italy,  Luxemburg,  the  Netherlands,  and 
Switzerland,  and  somewhat  later  by  Spain,  Belgium,  Portugal,  and 
Norway.  Of  the  fourteen  states  represented  in  the  conference, 
seven  thus  were  ready  to  sign  the  treaty  at  once,  but  among  these 
the  prohibition  was  already  in  force  in  five  states,  while  in  the  sixth 
the  industry  was  almost  negligible.  Italy  was  the  only  country 
making  any  considerable  concession,  and  here  the  convention  has 
not  as  yet  been  ratified.  By  January,  1910,  the  convention  had 
been  ratified  by  France  and  most  of  her  colonies,  Germany,  Den- 
mark, Luxemburg,  the  Netherlands,  Switzerland,  Spain,  Great 
Britain,  and  the  Orange  River  Colony.  Great  Britain  and  Austria 
had  previously  conditioned  their  acceptance  upon  the  adhesion  of 
practically  every  country  where  the  match  industry  was  carried 
on,  more  especially  of  Japan.  Great  Britain  pointed  out  that  the 
signing  of  the  treaty  would  necessitate  (a)  the  postponement  of 
other  social  legislation  deemed  more  important  in  England, 
(b)  depriving  the  people  of  their  accustomed  kind  of  matches  and 
increasing  the  price,  and  (c)  hampering  the  British  export  trade 
with  restrictions  not  borne  by  competitors.  The  British  con- 
tended that  their  system  of  restrictions  had  effectively  stamped 
out  necrosis,  and  that  until  other  competing  states  were  ready  to 
take  similar  measures,  they  could  not  be  expected  to  sign  the  con- 
vention. The  effect  of  the  treaty  was,  however,  practically  to 
exclude  British  matches  from  the  European  markets.  This  led  to 
the  passage  of  a  parliamentary  act  in  December,  1908,  prohibiting 
the  sale,  manufacture,  or  importation  of  white-phosphorus  matches. 
The  exclusion  of  such  matches  from  Australia,  a  field  of  export 
which  the  Japanese  manufacturers  were  finding  very  profitable, 
will  be  a  potent  factor  in  inducing  Japan  to  accede  to  the  conven- 
tion. So  far,  however,  the  burdens  of  the  late  war  have  rested  so 
heavily  upon  that  country  that  she  has  hesitated  to  hamper  her 
industries  by  restrictions  which  are  not  imperatively  demanded. 

The  extension  of  the  white-phosphorus  prohibition  is  of  further 
interest  as  showing  the  obstacles  which  must  be  overcome  before 
any  prohibitory  law  can  be  made  world-wide  in  its  scope.  Before 
nations  can  become  signatory  to  treaties  of  this  character  they  must 
have  the  social  legislation  developed  to  such  a  point  that  the  pro- 
posed provision  fits  in  readily  with  the  established  system.  It  is 
unreasonable  to  suppose  that  all  countries  that  are  thrown  into 

449 


§   10]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

industrial  competition  have  constructed  their  social  legislation 
along  similar  lines.  The  physical  and  intellectual  development 
of  the  working  classes  depends  upon  many  factors,  among  which 
climate  and  race  are  prominent ;  each  country  must  bear  in  mind 
its  own  peculiar  needs  in  framing  industrial  legislation,  and  the 
matter  of  conforming  to  the  laws  of  other  countries  is  of  secondary 
consideration.  There  are  many  industries,  too,  where  there  is 
competition  with  countries  in  which  the  regulation  of  labor  is 
primitive,  and  where  for  years  to  come  no  hope  can  be  entertained 
of  adequate  laws  properly  enforced. 

International  labor  legislation  implies  that  the  contracting  states 
are  developing  their  social  laws  along  parallel  lines.  This  is  not 
necessarily  true.  Several  countries  may  be  equally  advanced  in 
general  labor  legislation,  but  economic  pressure  and  national  inter- 
ests may  have  operated  so  that  one  has  neglected  or  postponed  some 
one  branch  of  legislation  in  which  the  others  have  made  consider- 
able progress.  An  international  treaty  covering  such  a  branch  may 
mean  the  sacrifice  of  world  markets  on  the  part  of  one  country, 
with  no  similar  loss  on  the  part  of  other  nations.  Though  Great 
Britain  was  backward  in  prohibiting  the  use  of  white  phosphorus, 
the  fact  remains  that  in  regard  to  factory  and  labor  legislation  in 
general  she  was  far  in  advance  of  most  of  the  signatory  powers  to 
the  convention  of  1906.  But  the  method  of  combining  those 
countries  which  can  pass  labor  legislation  at  comparatively  little 
cost,  and  then  gradually  enlarging  the  field  by  cutting  off  the  mar- 
kets of  recalcitrants,  results  in  an  extension  of  labor  prohibitions 
which  nations  working  independently  might  be  years  in  accom- 
plishing. The  limitation  noted  further  suggests  a  method  of  work 
for  which  the  international  association  of  labor  legislation  is  admi- 
rably fitted,  and  which  it  is  in  fact  pursuing  with  marked  success. 
By  operating  through  the  national  sections  in  accordance  with  the 
program  outlined  by  the  bureau,  pressure  can  be  brought  to  bear 
upon  the  respective  governments  to  induce  them  to  legislate  upon 
particular  subjects ;  when  this  has  reached  a  stage  sufficiently 
advanced,  the  time  is  ripe  for  an  international  agreement. 

In  regard  to  the  regulation  of  industries  through  international  con- 
ventions, the  United  States  occupies  a  position  less  advantageous 
than  do  the  European  countries,  owing  to  the  peculiar  form  of  our 
governmental  organization.  The  enactment  of  social  legislation 
belongs  in  the  main  to  the  States  rather  than  to  the  federal  govern- 
ment, and  constitutional  prohibitions  keep  the  States  from  entering 
into  treaties  with  foreign  countries,  or  even  among  themselves, 

450 


CHAP.    XII]  INTERNATIONAL   EXPERT   UNIONS  [§  10 

without  the  consent  of  Congress.  The  American  section  of  the 
international  association,  especially  in  its  operations  through  the 
State  sections,  is  nevertheless  accomplishing  marked  results  in 
securing  uniform  laws  in  the  various  States,  in  conformity  with  the 
plans  of  the  international  association. 

The  extreme  caution  with  which  the  governments  have  proceeded 
in  regard  to  labor  treaties  is  a  characteristic  mark  of  the  jealousy 
which  states  feel  in  behalf  of  their  legislative  independence  in  such 
important  matters.  In  the  railway  and  telegraph  service  a  unified 
administrative  procedure  for  international  traffic  was  forced  upon 
the  various  governments  by  the  circumstances  of  the  case.  That 
there  is  a  great  need  for  international  regulation  of  labor  laws  is 
apparent  from  the  interest  which  this  subject  has  aroused.  Na- 
tional advance  in  labor  reform  would  in  fact  be  checkmated  were 
it  not  to  be  seconded  by  agreements  of  wider  scope.  Yet  the  gov- 
ernments have  been  very  reluctant  to  commit  themselves  to  any 
definite  policy  of  uniformity  in  this  matter,  and  the  existing  union 
has  therefore  remained  semiprivate  in  its  nature,  for  its  main  con- 
stituent elements  are  the  national  sections.  The  international 
labor  office  may  also  be  called  a  semiprivate  institution,  though  its 
work  has  been  assisted  in  every  way  by  the  various  public  adminis- 
trations which  deal  with  labor  affairs.  The  expenses  of  the  office 
are  borne  partly  by  the  contributions  of  national  sections,  but  more 
largely  by  subscriptions  of  governments,  Switzerland  itself  lead- 
ing with  a  subscription  of  12,000  francs  a  year,  while  the  United 
States  contributes  only  $200. 

In  this  connection  we  may  also  note  the  provisions  of  the  Franco- 
Italian  treaty  of  April  7,  1904.  This  treaty  constitutes  a  very  im- 
portant attempt  to  have  the  privileges  of  national  labor  legislation 
extended  to  laborers  who  are  sent  in  from  another  state.  The 
convention  refers  especially  to  the  gratuitous  transfer  of  the  savings 
accounts  of  laborers  from  one  country  to  another,  the  admission  of 
foreign  laborers  to  the  benefits  of  national  labor  insurance,  and  the 
extension  to  them  in  general  of  the  protection  afforded  workingmen 
by  the  national  law.  Each  power  is  obliged  to  make  a  full  annual 
report  on  matters  of  public  administration  relating  to  labor,  so  that 
a  guarantee  may  be  afforded  of  the  faithful  carrying-out  of  the 
treaty  provisions,  through  a  mutual  accountability.1 

On  July  3,  1909,  representatives  of  Great  Britain  and  France 

1  Text  in  "Revue  de  droit  international",  1904,  p.  296;  Guyot,  T., 
ibid.,  p.  359;  Pic,  in  "Revue  generale  de  droit  international",  Vol.  XI, 
p.  515. 

451 


§    10]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

signed  a  convention  at  Paris,  providing  for  the  admission  by  eith:r 
country  of  laborers  belonging  to  the  other,  to  the  benefits  of  state 
workingmen's  insurance  against  accidents. 

§11.  The  Sugar  Convention.1  —  For  over  forty  years  past, 
negotiations  have  from  time  to  time  been  carried  on  among  the 
powers  for  the  purpose  of  putting  restraints  upon  the  policy  c  f  indi- 
vidual governments,  by  which  they  attempt  to  modify  the  com- 
merce and  production  of  sugar  by  means  of  a .  bounty  system. 
Earlier  treaties,  such  as  those  of  1864  and  of  1877,  proved  inade- 
quate to  accomplish  this  purpose,  because  of  the  lack  of  com- 
pulsory provisions  and  the  consequent  failure  of  some  of  the  con- 
tracting  nations  fully  to  live  up  to  the  agreement.  After 
long-continued  negotiations  and  a  succession  of  conferences,  a 
convention  was  finally  concluded  in  Brussels  in  March,  1902,  by 
which  a  number  of  European  states  formed  a  union  for  the  purpose 
of  doing  away  with  sugar  bounties  and  placing  a  fixed  limit  upon 
import  duties  (they  are  not  to  exceed  the  excise  tax  by  more  than 
six  francs  per  quintal  on  refined,  and  five  and  a  half  francs  on  crude, 
sugar).  The  union  included  at  the  time  of  its  formation  nine 
states,  and  it  now  has  fourteen  members,  including  Russia,  which 
came  in  under  a  special  arrangement  in  1907.  A  permanent  organi- 
zation is  provided  for  in  Article  7  of  the  treaty,  which  creates  a 
standing  commission  charged  with  supervising  the  execution  of 
the  agreement.  This  commission  is  composed  of  delegates  of  the 
contracting  states,  and  has  its  seat  at  Brussels.  Its  functions  are 
as  follows :  (a)  to  determine  whether  in  the  contracting  states 
there  is  accorded  any  direct  or  indirect  bounty  on  the  production  or 
exportation  of  sugar;  (6)  to  determine  whether  the  contracting 
states,  which  are  not  exporters,  continue  in  that  special  condition ; 
(c)  to  determine  the  existence  of  bounties  in  nonsignatory  states 
and  the  amount  of  the  compensatory  duty ;  (7/)  to  give  advisory 
decisions  on  questions  in  controversy ;  (e)  to  give  due  form  to 
requests  for  admission  to  the  union  on  the  part  of  states  which  are 
not  yet  members;  (/)  to  authorize  the  levy  of  an  exceptional  sur- 
charge (not  more  than  one  franc  per  hundred  kilograms)  by  any 
one  of  the  contracting  states  against  another,  by  whose  sugar  its 
markets  are  invaded  to  the  injury  of  national  production. 

1  Text  of  the  treaty  of  1902,  in  "Staats-Archiv",  Vol.  LXVII,  p.  267; 
Martino,  G.,  "The  Brussels  Sugar  Conference",  "  Ec.  Jour.",  1904; 
Taylor,  B.,  "Sugar  and  the  Convention",  "Fortnightly",  Vol.  LXXVII, 
p.  63  '::  Lough,  T.  If.,  "The  Sugar  Convention  of  Brussels",  "Contemp. 
Rev.",  Vol.  LXXXIII,  p.  75;  Kauffmann,  "Weltzueker-industrie ", 
1903;    Politis,  N.,  "L'Union  internat.  des  sucres  ",  1904. 

452 


Chap.    XII]  INTERNATIONAL   EXPERT  UNIONS  [§  11 

In  general,  it  will  be  seen,  the  duties  of  the  commission  are  con- 
fined to  determining  the  existence  of  facts.  On  questions  sub- 
mitted, it  makes  an  official  report  addressed  to  the  Belgian  govern- 
ment, to  be  communicated  to  the  contracting  states.  But  certain 
determinations  of  the  commission  have  a  direct  validity,  and  form 
the  basis  of  contingent  treaty  obligations  on  the  part  of  the  con- 
tracting states.  This  is  the  case  with  reference  to  the  matters 
mentioned  under  (6)  and  (c)  above.  As  soon  as  the  commission 
shall  determine  that  the  states  of  Spain,  Italy,  and  Sweden  have 
begun  to  export  sugar,  these  states,  under  the  agreement,  must 
conform  their  legislation  to  the  dispositions  of  the  convention. 
Whenever  the  commission  ascertains  the  existence  of  bounties  in 
nonsignatory  states,  the  treaty  powers  are  bound  to  levy  a  counter- 
vailing duty  upon  sugar  imported  from  such  sources.  These 
determinations  are  made  by  a  majority  of  the  commission,  each 
state  being  entitled  to  one  vote,  and  they  go  into  effect  within  two 
months  of  their  date.  An  appeal,  to  be  considered,  must  be  lodged 
within  eight  days  after  the  notification.  It  will  then  be  decided 
within  a  month. 

The  commission  is  assisted  by  a  permanent  bureau  located  at 
Brussels,  upon  which  is  imposed  the  function  of  collecting,  arrang- 
ing, and  publishing  every  kind  of  information  and  statistics  con- 
cerning sugar  legislation  throughout  the  world.  The  expenses  of 
the  bureau  and  of  the  commission  are  borne  by  the  contracting 
states,  who  also  pay  individually  the  expenses  of  their  delegates. 
It  is  to  be  noted  that  these  organs  of  the  union  do  not  correspond 
directly  with  the  contracting  states.  The  communications  are  all 
made  through  the  Belgian  government,  which  thus  becomes  the 
diplomatic  agent  of  the  union.  Even  information  on  laws  and 
regulations  concerning  sugar,  as  well  as  statistical  data,  are  not 
communicated  directly  to  the  commission,  but  through  the  Belgian 
government  as  an  intermediary.  All  reports  of  the  commission  are 
likewise  transmitted  through  the  Belgian  government,  which  also 
has  the  right  of  calling  new  conferences.  The  sugar  commission  is 
the  only  international  organ  which  has  a  right,  through  its  deter- 
minations and  decisions,  to  cause  a  direct  modification  of  the  laws 
existing  in  the  individual  treaty  states,  within  the  dispositions  of  the 
convention.  Though  not  given  direct  legislative  power,  it  makes 
determinations  of  fact  upon  which  changes  in  the  laws  of  the  individ- 
ual states  become  obligatory  under  the  treaty.  Its  function  may 
be  compared  to  that  intrusted  to  the  President  of  the  United  States 
in  the  reciprocity  provisions  of  the  McKinley  and  Dingley  tariff  laws. 

453 


§  11]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

In  1907  the  life  of  the  union  was  extended  for  a  period  of  five 
years  from  September  1,  1908.  It  was  also  agreed  that  after  this 
date  Great  Britain  should  be  released  from  penalizing  the  importa- 
tion of  bounty-fed  sugars,  but  such  sugars  when  reexported  from 
Great  Britain  to  any  other  contracting  state  would  become  liable 
to  the  compensatory  duty. 

§  12.  Agriculture.1  —  Like  other  economic  interests,  those  of 
agriculture  extend  in  their  relations  beyond  the  political  boundaries 
of  states.  The  prosperity  of  the  farmers  of  a  nation  is  determined 
to  a  large  extent  by  the  conditions,  legal  and  economic,  in  markets 
beyond  the  national  boundary.  Being  more  dispersed  than  the 
representatives  of  other  pursuits,  commercial  or  industrial,  agricul- 
tural producers  have  been  less  successful  in  uniting  for  a  defense 
of  their  common  interests.  Yet  several  private  associations  for 
the  unification  of  various  agricultural  interests  throughout  the 
world  were  formed  toward  the  end  of  the  nineteenth  century.  A 
general  international  congress  of  agriculture  has  assembled  periodi- 
cally. It  is  composed  of  national  sections  and  has  for  its  organ  a 
permanent  international  commission.  Moreover,  special  organi- 
zations were  founded  to  develop  international  relations  among 
special  groups  of  producers.  Thus  there  was  created  a  statistical 
union  of  sugar  production  and  a  congress  of  cotton  producers  and 
manufacturers.  The  latter  established  a  permanent  executive  or- 
ganization at  its  meeting  in  Zurich  in  1904.  The  cotton  congress, 
held  the  year  after  the  international  institute  of  agriculture  had 
been  created,  expressed  its  sympathy  with  that  undertaking,  and 
the  hope  that  it  might  soon  include  in  its  studies  and  operations 
matters  relating  to  cotton  culture.  A  German  scientist,  Dr. 
Ruhland,  has  organized  at  Freiburg  an  international  office  for  the 
observation  of  grain  prices  and  markets,  which  has  done  valuable 
work  in  providing  accurate  information  on  the  supply  and  prices 
of  grain,  thereby  enabling  producers  to  take  intelligent  advantage 
of  the  conditions  of  the  world's  market. 

These  various  tentative  efforts  and  organizations,  with  many 
others  not  here  mentioned,  indicated  that  the  time  was  ripe  for  the 
creation  of  a  more  general  union  for  the  advancement  of  agricul- 

1  Delia  Volta,  R.,  "The  International  Institute  of  Agriculture",  "Rev. 
d'.'r.  j>ol.",  Vol.  XIX,  p.  .7.I7;  Gidel,  "L'Inst.  agricole  internat.",  "  An- 
nates des  sciences  politiques",  Vol.  XX,  ]>.  030;  Pantaleoni,  M.,  in  (ho 
"Giornale  degli  eeonormsti ",  February,  1905;  Papafava,  F.,  ibid.,  Sep- 
tember, 1905;  Henry,  A.,  "  L'organisation  du  commerce  des  liles", 
els,  1000;  Luzzatti,  L.,  "The  International  Institute  of  Agriculture  ", 
"North  Aim.  Kev.",  Vol.  CLXXXI1,  p.  051;  Bellini,  A.,  "L'Istituto 
intemaz.  d'agric",  Turin,  1900. 

454 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§   12 

tural  interests.  The  official  initiative  in  this  matter  was  taken  by 
King  Victor  Emmanuel  III,  of  Italy,  to  whom  the  idea  of  an  inter- 
national institute  of  agriculture  had  been  suggested  by  Mr.  David 
Lubin,  an  American.  The  king,  on  January  24,  1905,  addressed 
to  the  president  of  the  Italian  council  of  ministers  a  letter  in  which 
he  outlined  the  objects  and  purposes  of  such  an  institution  in  the 
following  language : 

The  agricultural  classes,  generally  the  most  numerous  in  the  coun- 
try, have  indeed  a  great  influence  upon  the  destiny  of  nations ;  but 
being  without  any  organization  or  bonds  of  connection  among  them- 
selves, they  cannot  effectively  cooperate  for  the  improvement  and 
proper  distribution  of  the  different  crops  according  to  the  demands 
of  consumers,  nor  for  the  protection  of  their  interests  in  the  markets 
which,  with  regard  to  the  most  important  products,  constantly  tend 
to  become  more  nearly  world-wide. 

An  international  institute  could  therefore  be  of  great  utility  if,  free 
from  all  political  aims,  it  engaged  itself  in  the  study  of  the  conditions  of 
agriculture  in  the  different  countries  of  the  world,  giving  information 
from  time  to  time  upon  the  quantity  and  quality  of  crops,  the  manner 
of  facilitating  production,  the  least  expensive  and  most  rapid  means  of 
reaching  the  market,  and  the  most  equitable  method  of  fixing  prices. 
Such  an  institute,  working  in  conjunction  with  the  different  national 
bureaus  already  created,  would  also  be  able  to  furnish  accurate  data 
upon  the  conditions  of  rural  labor  in  different  places,  so  as  to  be  a  useful 
and  reliable  guide  for  emigrants  ;  it  could  make  arrangements  for  the 
common  defense  against  diseases  of  plants  and  animals,  which  resist 
individual  or  partial  efforts ;  finally,  it  would  exercise  a  beneficent 
influence  in  the  development  of  rural  cooperation,  insurance,  and 
agrarian  credit. 

On  the  basis  of  this  royal  initiative  the  Italian  foreign  office  in- 
structed its  diplomatic  agents  to  attempt  to  secure  the  cooperation 
of  the  powers  for  the  purpose  of  creating  an  international  institute. 
These  instructions  call  attention  to  the  disadvantages  from  which 
farmers  now  suffer  through  the  lack  of  united  action,  which  makes 
them  a  prey  to  speculators  and  to  commercial  and  railway  syndi- 
cates. But  the  instructions  especially  emphasize  the  support 
which  the  movement  for  world  peace  would  receive  through  a 
development  of  the  common  interests  of  the  agricultural  class.  It 
is  therefore  suggested  that  there  be  formed  an  institute  composed 
of  the  delegates  of  various  governments  and  of  national  associations 
of  agriculture.  The  purpose  of  such  an  institute  would  include 
the  organization  of  agricultural  exchanges  and  labor  offices ;    the 

455 


§  12]  PART   III      UNIFICATION   OF   LAW  [Chap.    XII 

organization  of  rural  cooperation  in  sales,  purchases,  credit,  and 
insurance ;  the  defense  against  syndicates  of  intermediaries  ;  and 
the  preparatory  study  of  legislative  and  administrative  problems. 
Through  the  work  of  the  institute  the  governments  would  be  en- 
abled to  act  in  unison,  upon  the  most  reliable  information.  In 
order  that  these  matters  might  be  discussed,  the  Italian  govern- 
ment extended  an  invitation  to  the  powers  to  send  delegates  to  a 
conference  to  meet  at  Rome.  In  preparation  for  this  conference 
the  ministries  of  foreign  affairs  and  agriculture  in  Italy  worked 
out  a  definite  program  which  embodied  these  suggestions. 

In  the  conference  which  met  on  May  28,  1905,  thirty-eight  Euro- 
pean, American,  Asiatic,  and  African  governments  were  represented 
by  official  delegates.  Although  some  of  the  most  powerful  states 
maintained  an  attitude  of  reserve,  the  general  idea  of  an  interna- 
tional institute  of  agriculture  was  received  with  favor.  Opinions 
were  however  divided  on  the  form  that  it  should  take.  The  thought 
of  the  Italian  government  evidently  had  been  that  there  should  be 
two  component  elements,  possibly  organized  in  two  separate  houses, 
one  comprising  the  delegates  of  the  governments,  the  other  the 
representatives  of  agricultural  associations.  Thus  only,  it  was 
believed,  could  the  agricultural  interests  throughout  the  world 
become  truly  unified.  The  conference,  however,  confined  its  action 
to  the  establishment  of  an  institution  composed  solely  of  the  dele- 
gates of  governments,  —  diplomats  or  agricultural  experts.  The  in- 
ternational institute  of  agriculture,  as  organized  by  the  conference, 
accordingly  takes  the  following  form :  It  is  a  public  institution, 
consisting  of  a  general  assembly  and  a  permanent  commission,  in 
both  of  which  each  treaty  power  is  represented.  The  general 
assembly  controls  the  work  of  the  institute.  It  considers  projects 
prepared  by  the  permanent  commission,  fixes  the  budget,  and 
makes  suggestions  to  the  contracting  governments  with  respect 
to  modifications  of  the  organization.  The  quorum  is  fixed  at  two 
thirds  of  all  the  votes  of  the  contracting  states.  The  permanent 
commission  carries  out  the  directions  of  the  assembly,  and  prepares 
projects  for  consideration  by  the  latter.  It  is  composed  of  one 
representative  from  each  of  the  states,  although  one  delegate  may 
represent  several  governments. 

The  functions  of  the  institute  are  as  follows  :  (a)  to  collect,  study, 
and  publish  statistical,  technical,  and  economic  information  rela- 
tive to  agricultural  and  animal  husbandry,  agricultural  markets, 
and  prices  ;  (b)  to  communicate  the  above  information  to  govern- 
ments interested  ;    (c)  to  investigate  the  payment  of  rural  labor; 

456 


Chap.    XII]  INTERNATIONAL   EXPERT   UNIONS  [§  12 

(d)  to  give  notice  of  new  plant  diseases  which  may  appear  in  any 
part  of  the  world,  indicating  the  extent  of  territory  affected,  the 
course  of  the  malady,  and,  if  possible,  efficacious  remedies ;  (e)  to 
study  questions  relative  to  agricultural  cooperation,  insurance,  and 
credit ;  (/)  to  present,  for  the  approbation  of  governments,  meas- 
ures for  the  protection  of  the  common  interests  of  agriculturalists 
and  for  the  betterment  of  their  condition,  taking  account  of  all 
means  of  information,  such  as  resolutions  of  international  and 
other  agricultural  congresses,  agricultural  societies,  academies,  and 
other  scientific  bodies. 

The  states  belonging  to  the  institute  are  divided  into  five  groups, 
each  state  being  free  to  choose  for  itself  to  which  group  it  will  belong. 
Members  of  the  first  group  have  five  votes  in  the  assembly  and 
contribute  sixteen  units  to  the  income  of  the  institute ;  in  the  second 
group  they  have  four  votes  and  contribute  eight  units ;  and  so  on 
down  to  the  fifth,  where  each  member  has  one  vote  and  contributes 
one  unit.  The  unit  is  not  to  exceed  2500  francs  a  year.  The  king 
of  Italy  supported  the  foundation  of  the  institute  by  making  over 
to  it  the  revenues  of  certain  valuable  crown  domains. 

The  organization  determined  on  by  the  diplomatic  conference  at 
Rome  was  far  from  meeting  the  desires  and  aspirations  of  the  men 
who  were  most  interested  in  the  movement  for  an  international 
union  of  agriculture.  Not  only  is  the  institute  a  purely  govern- 
mental institution,  but  its  functions  are  practically  confined  to  the 
collection  of  information  and  the  suggestion  of  projects  for  treaties 
and  legislative  measures.  Yet  it  could  hardly  be  expected  that  the 
governments  would  immediately  consent  to  the  establishment  of 
an  organ  with  direct  administrative  functions,  such  as,  for  instance, 
an  international  cooperative  union  of  agricultural  credit.  On  the 
basis  of  the  organization  as  effected,  it  will  be  possible  to  centralize 
efforts  in  behalf  of  the  agricultural  interests  and  to  secure  a  gradual 
amelioration  of  agricultural  conditions.  The  institute,  as  its 
organic  law  indicates,  will  hold  itself  ready  to  cooperate  with  na- 
tional and  international  organizations  representing  private  initia- 
tive, such  as  the  international  congress  of  agriculture  mentioned 
above.  In  Italy  there  was  organized  in  1905  a  special  office  for  the 
representation  of  agricultural  societies  and  cooperative  organiza- 
tions, which  is  to  mediate  between  the  latter  and  the  international 
institute. 

Several  matters  connected  with  agriculture,  which  have  hereto- 
fore been  regulated  by  separate  treaties,  will  now  probably  be 
drawn  within  the  scope  of  the  agricultural  institute.     In  1878  there 

457 


§  12]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

was  formed  in  Bern  a  union  comprising  eleven  European  states, 
for  preventing  the  introduction  and  spread  of  phylloxera.  In 
March,  1902,  a  convention  was  concluded  at  Paris  for  the  protec- 
tion of  useful  birds  ;  this  has  been  ratified  by  eleven  states.  The 
treaty  governments  engage  themselves  to  propose  to  their  respec- 
tive legislatures  measures  for  the  protection  of  birds  which  destroy 
insects  noxious  to  agriculture.  In  this  connection  we  may  also 
mention  the  union  for  the  protection  of  large  African  game,  con- 
cluded in  London,  May  19,  1900,  among  the  powers  which  have 
colonies  in  central  Africa. 

§  13.  Insurance.1  —  Though  there  has  not  as  yet  been  created  in 
the  interests  of  insurance  an  international  administrative  organiza- 
tion, yet.  a  number  of  governments  have  regularly  participated  in 
the  meetings  of  international  associations  dealing  with  insurance 
problems.  Most  prominent  among  these  is  the  international 
congress  of  actuarial  science.  Not  only  have  the  meetings  of  this 
congress  usually  been  held  under  government  patronage,  and  under 
the  presidency  of  some  important  statesmen  (in  1903,  Secretary 
Cortelyou,  in  Xew  York),  but  many  governments  have  been  repre- 
sented by  official  delegates,  and  the  deliberations  of  the  congress 
have  dealt  to  a  large  extent  with  administrative  and  legal,  as 
distinct  from  technical  and  mathematical,  subjects.  The  congress 
of  1906  was  held  in  Berlin  in  conjunction  with  the  fourth  inter- 
national congress  of  insurance  medicine.  Sixteen  governments 
were  represented  by  official  delegates,  and  five  of  the  thirteen  topics 
of  discussion  dealt  entirely  with  administrative  and  legal  questions. 
The  congress  has  an  official  organ  in  the  permanent  committee  for 
insurance  congresses  at  Brussels.  Aside  from  the  governments, 
national  actuarial  societies  and  similar  associations  are  represented 
in  its  organization. 

The  international  congress  of  protection  against  fire,  which  is 
a  more  purely  private  organization,  resolved,  in  London  in  1903, 
to  establish  experiment  stations,  an  international  expert  commis- 
sion, and  a  central  statistical  bureau.  International  congresses 
of  labor  insurance  have  been  held  repeatedly  (the  eighth  congress 
met  at  Rome  in  1900)  and  have  received  financial  assistance 
from  various  European  states. 

1  Emminghaus,  in  "Zeitschrift  f.  d.  Versiehorungs-Wissensehaft ", 
Vol.  VII,  p.  9;  "Reports,  Memoirs,  and  Proceedings  of  the  Fifth  Inter- 
national Congress  of  Actuaries,"  Berlin,  1900. 


i;,s 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  15 

III.    Sanitation  and  Prison  Reform 

§  14.  The  International  Prison  Congress.1  —  Congresses  for  the 
purpose  of  the  discussion  of  penitentiary  administration  and  reform 
have  been  held  at  irregular  intervals  from  1840  on.  At  the  con- 
gress of  1872,  under  the  leadership  of  the  United  States,  steps  were 
taken  to  secure  a  permanent  organization.  Since  1880  congresses 
have  been  held  every  five  years,  the  place  of  the  last  meeting  being 
Washington  (1910).  At  the  congress  at  Budapest  in  1905  twenty- 
eight  nations  were  represented.  The  scope  of  the  work  of  the  con- 
gress is  not  apparent  from  its  designation  in  English.  This  is  an 
imperfect  translation  of  " penitentiaire  ",  a  term  which  includes  the 
consideration  of  all  that  relates  to  the  moral  and  physical  ameliora- 
tion of  prisoners  as  well  as  to  the  prevention  of  crime.  The  execu- 
tive work  of  preparing  for  the  congresses  is  performed  by  the  inter- 
national penitentiary  commission  composed  of  one  delegate  from 
each  country.  The  commission  meets  regularly  every  two  years, 
and  is  composed  of  four  sections,  for  the  consideration  of  prison 
administration,  penal  law,  prevention  of  crime,  and  juvenile  delin- 
quencies. The  secretariate  of  the  commission  is  situated  at  Bern. 
Some  time  previous  to  the  meeting  of  the  congress,  series  of  ques- 
tions prepared  by  experts  are  sent  out  to  the  various  countries 
represented.  They  are  submitted  to  careful  review  by  adepts, 
and  reports  upon  them  are  returned  to  the  secretariate.  All  these 
reports  are  then  edited  and  published  in  French,  to  be  distributed 
among  all  the  delegates  appointed  to  the  congress,  in  time  for 
them  to  give  these  matters  careful  study.  In  this  manner  the 
discussions  avoid  all  preliminary  misunderstandings  as  to  defini- 
tions and  points  at  issue,  and  the  meetings  of  the  congress  are 
usually  very  fruitful  in  the  formation  of  definite  opinions  on  matters 
connected  with  practical  prison  administration.  The  congress  and 
the  commission  have  no  power  to  bind  the  respective  governments 
by  treaty  ;  their  purpose  is  primarily  the  exchange  of  expert  opinion 
and  knowledge,  for  the  development  of  the  science  of  penitentiary 
administration. 

§15.  International  Sanitation.2  —  International  defensive  ac- 
tion against  invasion  by  epidemics  was  first  urged  by  the  French 

1  "Bulletin  de  la  Commission  penitentiaire  Internationale",  Brussels 
and  Bern ;  Jaspar,  H.,  in  "Revue  de  droil  international",  1901,  p.  448; 
National  Prison  Association,  "Proceedings",  1905,  p.  227.  '"Charities", 
Vol.  XV,  p.  116;  "Les  congrSs  penitentiaires  interna!.",  "Revue  peni- 
tentiaire", 1905,  p.  653;  I.<  Poittevin,  A.,  in  " Revue  de  droil  international 
prive  ",  Vol.  I,  p.  90;  Barrows,  S.  J.,  "The  International  Prison  Con- 
gress ",  Sen.  Doc.  462,  Sixtieth  '■  longress,  first  session,  1908. 

2  Text  of  the  treaty  of  Venice,  1897,  in  "Staats-Archiv",  Vol.  LXI, 

459 


§  15]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

government,  which  in  1851  called  a  sanitary  conference  to  meet  in 
Paris ;  this  was  followed  by  a  second  meeting  in  1859.  The 
terrible  epidemic  of  cholera  of  1865  caused  the  holding  of  a  third 
congress  at  Constantinople.  Other  conferences  have  followed  at 
short  intervals.  Although  from  the  first  these  had  a  diplomatic 
character  in  that  they  were  attended  by  the  representatives  of 
governments,  they  were  primarily  scientific  in  their  aims,  confining 
themselves  to  discussions  and  resolutions  rather  than  to  elaborat- 
ing treaties.  Ultimately,  however,  more  formal  action  was  taken, 
and  at  Venice  in  1892  the  first  general  treaty  for  protection  against 
cholera  was  framed.  Every  conference  since  then  has  added  to  the 
diplomatic  work,  that  of  Venice  in  1897  and  that  of  Paris  in  1903 
being  especially  important. 

At  the  latter  conference  it  was  voted  to  establish  an  international 
sanitary  office  to  be  situated  at  Paris.  Such  a  bureau  had  first 
been  suggested  at  the  international  congress  of  hygiene  at  Brussels 
in  1897.  At  the  Paris  sanitary  conference  the  president  of  the 
French  delegation  introduced  the  subject  by  calling  for  the  creation 
of  a  "  union  de  sante  incarnee  dans  une  autorite  internationale 
fortement  constitute."  The  functions  bestowed  upon  the  bureau 
according  to  this  first  proposal  are,  however,  not  executive,  but 
only  informational.  The  office  is  to  collect  information  on  the 
progress  of  infectious  diseases,  being  assisted  by  the  sanitary 
authorities  of  the  treaty  states.  The  results  of  the  work  of  the 
bureau  are  to  be  communicated  to  the  various  governments  and 
published.  The  establishment  of  the  bureau  was  supported  by  all 
powers  represented,  but  was  accepted  with  certain  reservations  by 
Austria,  Great  Britain,  and  Germany.  The  sixth  sanitary  confer- 
ence, which  met  at  Rome  in  1907,  drew  up  a  formal  convention 
which  contains  detailed  arrangements  for  the  new  institution.  The 
international  office  of  public  hygiene  is  located  at  Paris,  and  is 
under  the  control  of  a  commission  composed  of  delegates  from  all 
the  member  states.  Its  main  object  is  "  to  collect  and  bring  to  the 
knowledge  of  the  participating  states  facts  and  documents  of  a 
general  character  concerning  public  health  and  especially  regard- 

p.  261;  "La  conference  de  Paris",  1903,  in  "Revue  generale  de  droit 
international",  Vol.  XI,  p.  199;  Houet,  "Conference  int.  sanitaire",  in 
"Rev.  int.  de  droit  marit.",  Vol.  XIX,  pp.  805-870;  Loutfi,  Z.,  "La 
politique  sanitaire  internat.",  1906;  Monad,  H.,  in  "Rev.  coadminis- 
tration",  March,  1904;  Rapmund,  O.,  "Das  offentliche  Gesundheits- 
wesen",  Leipzig,  1901,  p.  126;  "  8e  Congres  internat.  d'hygiene  et  de 
demographie  ",  Budapest,  1895;  Hunt,  in  the  "Rev.  int.  de  droit  marit.", 
Vol.  XIX,  p.  803;  "Proces-verbaux  ",  Paris  Conference,  1903,  Paris, 
1904:   Text  of  Convention  of  1903,  transl.  by  Thomson,  London,  1904. 

460 


Chap.  XII]  international  expert  unions  [§  15 

ing  infectious  diseases,  notably  cholera,  the  plague,  and  yellow 
fever,  as  well  as  the  measures  taken  to  check  these  diseases." 
The  number  of  votes  allowed  each  treaty  state,  in  the  government 
of  the  office,  is  determined  by,  and  is  inversely  proportional  to, 
the  number  of  the  class  to  which  it  belongs  as  regards  its  participa- 
tion in  the  expenses.  The  budget  is  fixed  at  150,000  francs  per 
year.  The  convention  went  into  effect  in  1908,  after  having  been 
ratified  by  nine  powers,  including  the  United  States.  Other 
governments  have  since  given  their  adherence. 

The  execution  of  the  treaties  of  the  sanitary  union,  with  respect 
to  prophylactic  measures  to  be  taken  in  Turkey  and  Egypt,  is 
supervised  by  two  commissions,  the  sanitary  councils  of  Constanti- 
nople and  of  Alexandria.  The  "  conseil  superieur  de  sante  "  of 
Constantinople  was  created  by  arrangement  between  the  Sultan 
and  the  maritime  powers  having  relations  with  Turkey,  as  early  as 
1838.  It  was  natural  that  the  functions  of  surveillance  created 
by  the  treaty  of  Venice  in  1892  and  by  later  treaties  should  be 
intrusted  to  this  organ.  The  council  is  composed  of  seventeen 
voting  delegates,  four  being  appointed  by  Turkey,  the  others  by 
the  foreign  treaty  powers.  Decisions  of  the  council  are  taken  by 
majority  vote,  and  are  directly  executory.  The  Turkish  minister 
of  foreign  affairs  acts  as  president  of  the  council,  and  the  representa- 
tion of  the  foreign  powers  is  arranged  through  their  respective  lega- 
tions at  Constantinople.  The  council  supervises  the  quarantine 
service  at  Turkish  ports  on  the  Persian  Gulf  and  on  the  Red  Sea,  as 
well  as  along  the  Persian  and  Russian  boundaries.  The  expenses 
of  the  council  are  met  by  fees  imposed  for  quarantine  services, 
which  are  in  turn  regulated  by  a  "  mixed  commission  on  the  sani- 
tary tariff",  composed  of  representatives  of  the  various  powers. 
The  Turkish  government  also  contributes  toward  the  expenses. 

The  "  conseil  sanitaire,  maritime  et  quarantenaire  d'Egypte  "  at 
Alexandria  was  created  in  1881.  It  is  composed  of  the  representa- 
tives of  fourteen  treaty  powers  and  two  representatives  of  Egypt. 
The  presidency  is  accorded  to  the  representative  of  Great  Britain. 
The  council  has  regular  monthly  meetings,  and  controls  the  Egyp- 
tian quarantine  stations  on  the  Red  Sea,  the  Suez  Canal,  and  the 
mouth  of  the  Nile.  A  similar  sanitary  council  exists  at  Tangier. 
It  was  created  in  1840,  and  has  also  been  brought  into  relation  with 
the  general  sanitary  union.  The  conventions  framed  by  the  vari- 
ous sanitary  conferences  control  the  treatment  of  suspected  ships 
and  passengers  from  countries  subject  to  epidemics,  in  all  the  ports 
of  the  treaty  powers.     The  conclusion  of  general  treaties  on  this 

461 


§  15]  PART   III      UNIFICATION    OF    LAW  [Chap.    XII 

matter  was  for  a  long  time  resisted  by  Great  Britain,  because  of 
fears  in  behalf  of  her  shipping  interests.  The  continued  danger  of 
infection  from  oriental  countries,  however,  finally  forced  the  Eu- 
ropean nations  to  unite  in  self-defense.  The  sanitary  conferences, 
while  fitted  out  with  diplomatic  attributes,  are  still  largely  con- 
cerned with  scientific  questions.  The  provisions  of  their  treaties 
must  frequently  be  modified  in  accordance  with  the  latest  deter- 
minations of  science  with  respect  to  the  period  of  incubation  and 
the  most  efficient  means  for  preventing  the  transmission  of  disease. 

The  international  congress  of  hygiene  and  demography  has  a 
purely  scientific  character.  It  is  composed  of  the  official  repre- 
sentatives of  most  of  the  civilized  countries,  together  with  delegates 
of  scientific  bodies  and  of  local  councils  of  public  health.  The 
congress  has  a  permanent  commission  with  offices  at  Brussels. 
Another  similar  organization,  in  which  also  governments  officially 
interest  themselves,  is  the  international  congress  of  school  hygiene. 
Two  government  conferences  have  been  held  for  the  scientific  dis- 
cussion of  leprosy  (Berlin,  1897 ;  Bergen,  1909) ;  and  the  first 
international  congress  on  the  sleeping  sickness  was  held  at  London 
in  1907.  Six  countries  participated  in  the  latter  through  official 
delegations.1 

Pan- American  Sanitary  Union.2  —  The  second  Pan-American 
conference,  which  met  at  Mexico  in  1902,  passed  a  resolution  con- 
cerning international  sanitary  police.  Among  other  things  it 
recommended  that  the  "  American  governments  shall  cooperate 
with  each  other  toward  securing  and  maintaining  efficient  and 
modern  sanitary  conditions  in  all  their  respective  ports  and  terri- 
tories, to  the  end  that  quarantine  restrictions  may  be  reduced  to  a 
minimum  and  finally  abolished."  The  conference  also  provided 
for  the  calling  of  a  sanitary  congress  at  Washington  and  the  estab- 
lishment of  an  international  sanitary  bureau  at  the  same  place. 
The  latter  was  to  be  composed  of  a  permanent  executive  board  of 
not  less  than  five  members,  to  be  elected  by  the  congress.  These 
resolutions  were  carried  out,  the  bureau  was  established  in  Wash- 
ington, and  four  congresses  have  been  held  to  date.  The  second  of 
these,  which  met  in  October,  1905,  worked  out  a  treaty  project 
concerning  the  prevention  of  such  epidemics  as  cholera,  the  plague, 
and  yellow  fever.  This  treaty  has  been  ratified  by  fourteen  Ameri- 
can powers,  including  the  United  States,  Mexico,  Peru,  Venezuela, 

Brit.  Pari,  papers,  1907,  Cd.  3778,  and  1909,  Cd.  4916. 
2  "Proceedings  of  the  International  Sanitary  Conferences",  Washing- 
ton, 1902-1910;   "Report  of  the  Fourth  Conference",  in  "Bulletin  of  the 
American  Republics",  April,  1910. 

462 


Chap.    XII]  INTERNATIONAL   EXPERT  UNIONS  [§  16 

Brazil,  and  Colombia.  The  third  Pan-American  conference,  held 
at  Rio  de  Janeiro  in  1900,  passed  a  further  resolution  on  sanitary 
police.  After  recommending  the  general  acceptance  of  the  con- 
vention of  Washington,  it  urged  the  adoption  of  measures  tending 
to  assure  the  adequate  sanitation  of  cities  and  especially  of  ports. 
It  had  been  pointed  out  that  in  order  to  be  thorough,  international 
sanitary  police  must  not  confine  its  attention  to  quarantine  and  to  a 
definition  of  quarantinable  diseases,  but  must  advance  to  the  taking 
up  of  the  effective  sanitation  in  centers  from  which  disease  may 
spread.  The  Pan-American  conference  further  resolved  on  the 
establishment,  in  the  city  of  Montevideo,  of  a  center  of  sanitary 
information,  which  shall  supply  to  the  already  existing  interna- 
tional sanitary  bureau  at  Washington  the  elements  necessary  for 
a  successful  carrying-out  of  its  work.  Cooperation  between  the 
bureau  of  Washington  and  that  established  at  Paris  by  the  inter- 
national sanitary  union  was  also  provided  for,  with  a  view  to  ob- 
taining mutual  information.  The  fourth  international  sanitary 
conference  was  held  at  San  Jose  in  Costa  Rica  in  1909.  The 
advance  made  in  sanitation  throughout  America  as  a  result  of 
the  efforts  of  the  union  was  reviewed  at  this  time,  and  the  great 
benefits  obtained  through  this  work  were  brought  out  in  an  impres- 
sive manner.  The  conference  adopted  further  resolutions  em- 
bodying the  results  of  the  best  experience  in  dealing  with  the 
plague,  cholera,  and  yellow  fever,  and  recommending  specific 
measures  for  uniformity  in  mutual  protection. 

§  16.  The  International  Opium  Commission.1  —  In  view  of  the 
fact  that  the  opium  evil  in  China  and  other  countries  cannot  be 
effectively  combated  except  through  cooperation  among  different 
nations,  it  was  proposed  by  the  American  government  in  September, 
1906,  that  a  conference  be  held  by  a  commission  composed  of  dele- 
gates of  the  different  powers.  The  commission  met  at  Shanghai  in 
February,  1909,  upon  which  occasion  thirteen  nations  were  repre- 
sented. The  program  had  been  prepared  and  was  communicated 
to  the  countries  concerned  in  advance.  Each  government  had 
been  invited  to  submit  a  report  to  be  laid  before  the  commission 
at  Shanghai.  After  receiving  reports  and  discussing  the  questions 
before  it,  the  commission  adopted  a  set  of  resolutions  calling  for 
legislation  within  the  countries  represented,  against  the  manufac- 

1 " Proceedings  of  the  International  Opium  Commission",  Shanghai, 
1909;  Treaties  and  documents  concerning  opium  in  "Am.  Jour,  of  Inter- 
nat.  Law",  Supplement,  July,  1909;  Hamilton  Wright,  "International 
Opium  Commission",  "Am.  Jour,  of  Internat.  Law",  July  and  October, 
1909. 

463 


§  16]  PART   III      UNIFICATION    OF   LAW  [Chap.    XII 

ture  and  distribution  of  opium  for  other  than  medicinal  purposes. 
On  September  1,  1909,  the  American  Secretary  of  State  propose  I 
to  the  interested  powers  that  a  conference  be  called,  to  meet  at  The 
Hague,  for  the  purpose  of  framing  a  convention  concerning  opium, 
which  would  include  the  recommendations  made  by  the  opium 
commission  and  other  matters  connected  therewith. 

§  17.  The  Geneva  Convention.1  —  The  care  of  the  wounded 
during  wars  has  become  the  subject  of  a  special  international 
agreement,  the  Geneva  convention  of  1864.  This  regulates  the 
treatment  of  disabled  soldiers  and  neutralizes  the  sanitary  and 
hospital  services  during  military  operations.  This  convention 
made  possible  the  work  of  the  Red  Cross  societies,  which  have  been 
established  in  practically  all  civilized  countries.  These  associa- 
tions are  organized  on  a  private  basis,  though  their  work  is  essen- 
tially of  a  public  nature,  for  which  reason  they  must  necessarily  be 
in  close  touch  with  the  administration  of  military  affairs.  The 
societies  form  a  universal  union,  which  has  its  administrative 
offices  at  Geneva,  where  it  periodically  holds  conventions.  The 
international  committee  of  the  Red  Cross  at  Geneva  acts  as  a 
central  organ  of  communication  between  the  national  branches. 
Repeated  attempts  have  been  made  to  amend  the  convention  of 
1864,  and  finally,  in  1906,  a  new  convention  was  adopted  at  Geneva. 
The  latter  defines  with  greater  precision  the  persons  and  services 
protected  by  the  convention,  but  avoids  the  term  "  neutral  "  and 
gives,  in  some  respects,  greater  rights  of  control  to  belligerents. 
The  emblem  of  the  red  cross  is  henceforth  to  be  protected  against 
unauthorized  and  commercial  uses. 

IV.    Police  Powers 

§  18.  Fisheries  Police.2  —  The  fishing  industry  in  the  Xorth 
Sea,  being  carried  on  by  fishermen  of  various  nationalities,  has 
required  international  legislation  and  protection.  A  treaty  was 
concluded  in  1882  between  the  six  powers  most  directly  interested. 
Under  this  treaty  any  commissioned  ship  of  a  signatory  power  may, 
in  certain  enumerated  cases,  intervene  and  arrest  any  fishing  vessel 

1  "Bulletin  international  des  societes  de  la  eroix  rouge",  Geneva ; 
Moynier,  "Notions  essentielles  sur  la  eroix  rouge  ",  Geneva,  1896 ;  Me  urer, 
in  "Zeitschrift  fur  V5lkerreeht  und  Bundesstaatsreeht ",  Vol.  I,  p.  521; 
"Annuaire  de  la  vie  international  ",  1908-1909,  p.  421;  Fauchille  and 
Politis,  "Manuel  de  la  eroix  rouge",  1908. 

-  Treaty  of  May  6,  1882,  and  of  November  16^1887,  in  "Archives 
diplomatiques  " ;  Pere  de  Cardaillac  de  St.  Paul,  "Etude  de  droit  inter- 
national sur  la  peche  ",  Toulouse,  1903. 

464 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§   19 

belonging  to  a  subject  of  a  treaty  power.  The  delicts  for  which 
such  an  arrest  may  be  made  are  enumerated  in  the  treaty,  and  the 
delinquent  vessel  must  be  delivered  up  to  the  authorities  of  its 
own  country.  This  arrangement  is  supplemented  by  the  conven- 
tion of  November  16,  1887,  concluded  at  The  Hague  among  the 
same  powers,  with  the  exception  of  France.  Under  this  conven- 
tion the  surveillance  and  control  of  floating  "  cabarets,"  or  liquor 
shops,  is  provided  for.  The  policing  is  carried  on  by  the  com- 
missioned ships  of  the  treaty  powers,  which  have  the  same  rights 
of  arrest  in  this  matter  as  they  were  given  under  the  treaty  of  1882. 
§  19.  Protection  of  Submarine  Cables.1  —  The  international 
status  of  submarine  telegraphs  led  to  much  discussion  when  these 
instruments  of  communication  were  first  put  into  use.  In  1869  the 
government  of  the  United  States  suggested  the  holding  of  a  con- 
ference for  working  out  a  treaty  project  on  the  neutralization  and 
protection  of  cables.  The  Franco-Prussian  War  caused  the  post- 
ponement of  such  action,  although  there  was  continued  diplomatic 
and  scientific  discussion  of  the  international  law  aspects  of  marine 
telegraphy.  In  1879  the  Institute  of  International  Law  took  up 
this  matter  and  came  to  the  conclusion  that  the  first  object  to  be 
achieved  was  to  protect  submarine  cables  against  wanton  or  care- 
less destruction  by  means  of  an  international  agreement  for  the 
arrest  of  delinquents  on  the  high  seas.  In  1881,  on  the  basis  of  a  res- 
olution of  the  international  congress  of  electricians,  the  French  gov- 
ernment issued  invitations  for  a  diplomatic  conference,  which  met 
in  Paris  during  the  following  year.  Thirty-three  states,  as  well  as 
the  international  telegraph  bureau  of  Bern,  were  represented,  either 
by  diplomatic  or  expert  delegates.  The  delegates  of  the  United 
States,  the  power  which  had  originally  taken  the  initiative,  declined 
to  take  an  active  part  in  the  proceedings,  pleading  lack  of  instruc- 
tions from  their  government.  The  result  of  the  deliberations  of 
this  conference  was  the  drafting  of  a  convention  which  was  later 
ratified  by  the  diplomatic  representatives  of  the  powers  at  Paris 
(March  14,  1884).  Under  this  treaty  certain  precautions  for  the 
protection  of  cables  are  made  obligatory  upon  fishermen  and 
navigators.  The  commissioned  ships  of  any  signatory  power  may 
arrest  ships  suspected  of  having  willfully  or  negligently  injured 
cables.  The  arrest  is  made  for  the  purpose  of  ascertaining  from 
the  ship's  papers  all  necessary  data  with  respect  to  it.     Anauthen- 

1  Landois,  "  Volkerrechtl.  Schutz  d.  submarinen  Telegraph enkabel", 
Greifswald,  1894 ;  Renault,  L.,  on  protection  of  cables,  in  "  Revue  de  droit 
international",  Vol.  XV,  p.  17;  "Conf.  internat.  pour  la  protection  des 
cables",  1882,  1886,  Paris,  Impr.  Nat. 

465 


§  19]  PART  III      UNIFICATION   OF   LAW  [Chap.   XII 

tic  written  minute  ("proces  verbal")  is  made  out  on  the  basis  of 
the  facts  thus  ascertained  and  of  the  injuries  observed.  This 
document  has  legal  force  before  the  national  tribunals  of  the  delin- 
quent, to  which  jurisdiction  for  the  trial  of  such  cases  is  reserved. 

§  20.  African  Slave  Trade  and  Liquor  Traffic.1  —  Agreements 
for  the  suppression  of  the  slave  trade  were  made  between  Great 
Britain  and  France  in  the  years  1833  and  1841.  In  the  latter 
treaty  some  additional  states  joined.  The  congress  of  Berlin  in 
1885  took  up  the  question  again  and  determined  in  principle  upon 
the  more  complete  international  organization  of  the  preventive 
system.  The  Brussels  conference  of  1890  finally  regulated  the 
matter  through  a  convention  or  general  act  in  which  both  slave 
trade  and  African  slavery  itself  were  made  subject  to  strict  inter- 
national regulation.  An  office  was  established  at  Zanzibar  ("  bu- 
reau international  maritime  de  la  traite")  for  the  purpose  of  super- 
intending the  enforcement  of  the  general  act.  The  five  powers 
which  primarily  assumed  the  preventive  operations  on  sea  are 
represented  in  this  bureau.  A  second  bureau  was  established  at 
Brussels  for  the  purpose  of  collecting  information  and  publishing 
documents  and  statistics  with  respect  to  the  slave  trade.  Eighteen 
states  are  members  of  this  union.  The  Brussels  general  act  of 
1890  also  regulates  the  sale  of  liquors  in  the  central  belt  of  Africa 
(between  twenty  degrees  north  and  twenty-two  degrees  south). 
In  regions  where  the  natives  have  not  yet  become  accustomed  to  the 
use  of  liquors  the  traffic  is  entirely  forbidden.  For  other  parts  a 
high  minimum  excise  duty  is  fixed  by  the  treaty.  The  bureau  at 
Brussels  is  to  act  as  an  intermediary  between  the  treaty  powers  for 
the  exchange  of  information  concerning  the  liquor  traffic  in  their 
respective  African  possessions.  Conferences  were  held  in  1899,  in 
1906,  and  in  1908,  at  which  the  rules  of  1890  were  revised  and 
amended.  The  traffic  in  firearms  in  Africa  has  been  regulated  in 
a  similar  manner  by  international  action. 

§21.  The  White-Slave  Trade.2 — -The  nefarious  traffic  known 
as  the  white-slave  trade  has  for  a  considerable  time  operated  on 
an  international  basis.     The  persons  engaged  in  it  have  received 

1  Brussels  General  Act,  in  "Archives  diplomatiques",  Vol.  XXXV, 
p.  200;  "Documents  relatifs  a  la  repression  de  la  traite",  Brussels, 
annually;  "Recueil  du  bureau  de  Bruxelles."  "Actes  de  la  eonf.  de 
1906",  Brussels. 

2  "  int.  Conf.  for  the  Repr.  of  White  Slavery",  1902,  in  "Archives  di- 
plomatiques", Vol.  I, XXVII,  pp.  154-263;  Appleton,  P.,  "La  traite  des 
blanches",  Paris,  1903;  "Reports  of  the  international  Congress  for  the 
Repression  of  While  Slave  Trade"  (London,  1899;  Frankfurt,  1903: 
Paris,  1000) ;    Itcnault,  L.,  "La  traite  des  blanches",  in  "Revue  generale 

4G6 


CHAP.    XII]  INTERNATIONAL    EXPERT   UNIONS  [§  21 

protection  from  the  fact  that  their  transactions  were  not  confined 
to  one  single  national  territory,  but  that  acts  apparently  innocent 
and  legitimate  were  followed  by  a  consummation  in  another  state 
which  rendered  the  entirety  of  the  act  criminal.  Without  inter- 
national agreement  as  to  the  responsibility  in  such  cases,  it  would 
often  be  impossible  to  punish  guilty  persons  because  the  acts  com- 
mitted in  any  one  particular  state  might  not  amount  to  a  completed 
crime.  It  was,  moreover,  necessary  that  the  police  administrations 
of  the  different  states  should  support  the  efforts  of  each  other  by 
promptly  giving  information  and  in  other  ways,  so  that  the  execu- 
tion of  criminal  designs  might  be  frustrated.  The  matter  of 
coming  to  an  understanding  was  first  taken  up  by  private  inter- 
national congresses.  The  principal  one  of  these  organizations  is 
the  international  union  for  the  repression  of  the  white-slave  trade, 
which  was  founded  in  London  in  1899  and  has  its  central  office  in 
that  city.  The  successive  congresses  of  this  union  have  worked 
out  definite  principles  and  methods  for  the  purpose  of  preventing 
the  traffic  in  question.  Through  its  initiative  the  French  govern- 
ment was  prevailed  upon  to  call  a  conference  of  the  powers,  which 
met  in  Paris  in  July,  1902.  Fifteen  states  werere  presented,  includ- 
ing Brazil  on  the  part  of  America.  The  conference  elaborated 
projects  for  a  convention  and  for  an  administrative  arrangement. 
The  former  includes  such  modifications  of  the  principles  of  criminal 
law  as  would  be  necessary  to  make  the  suppression  of  the  traffic 
effective.  Certain  divergencies  as  to  the  age  of  majority,  the 
transmission  of  rogatory  commissions,  and  other  matters  delayed 
the  ratification  of  this  treaty ;  but  the  Paris  conference  of  April  1 8, 
1910,  resolved  these  difficulties  in  a  satisfactory  manner,  and  the 
convention  has  been  ratified  by  a  number  of  states. 

The  "arrangement "  has  in  view  the  adoption  of  methods  of  sup- 
pression which  can  be  instituted,  without  legislative  action,  by  mere 
administrative  ordinances  in  the  various  states.  This  was  ratified 
by  a  diplomatic  conference  assembled  in  Paris  in  May,  1904,  and  it 
has  been  accepted  by  sixteen  powers,  including  the  United  States.1 

de  droit  international",  Vol.  IX,  p.  497;  Rehm,  in  "Zeitschrift  fur  Vol- 
kerrecht  und  Bundesstaatsreeht  ",  Vol.  I,  p.  446;  Mayr,  G.  v.,  on  the 
Paris  congress  on  white  slavery,  1906,  in  "Beilage  zur  Allgemeinen  Zei- 
tung",  Munich,  February  .5-6,  1907;  Teutsch,  J.,  on  the  congress  of 
1906,  in  "Revue  penitentiaire  ".  Vol.  XXXI,  pp.  84-104:  Berenger,  /,'., 
"La  traite  des  blanches",  in  "Revue  de  deux  mondes ",  July,  1910; 
"Deuxieme  conference  internat.,  correspondance,  etc.",  "Archives  diplo- 
matiques",  Vol.  CXV,  pp.  45-200. 

1  The  legislative  and  administrative  autonomy  of  the  individual  States 
of  the  American  Union  places  great  difficulties  in  the  way  of  effective 
cooperation  on  our  part. 

467 


§  21]  PART   III      UNIFICATION    OF   LAW  [ClIAP.    XII 

It  further  provides  that  each  treaty  government  is  to  create  or 
designate  a  special  bureau  to  collect  all  specific  information  about 
attempts  to  engage  women  for  immoral  purposes  in  foreign  coun- 
tries. Such  bureau  is  to  have  the  right  of  immediate  communica- 
tion with  the  similar  bureaus  in  other  states.  The  governments 
are  to  institute  a  special  service  of  surveillance  in  railway  stations 
and  ports  for  the  purpose  of  discovering  attempts  to  carry  on  this 
illegal  traffic.  In  cases  where  mere  suspicion  exists,  such  suspicion 
shall  nevertheless  be  communicated  to  the  authorities  at  the  point 
of  destination  of  the  suspected  persons.  The  repatriation  of 
victims  of  the  traffic  is  also  provided  for.  The  French  government 
is  made  the  agent  of  the  union  for  the  purpose  of  carrying  on  the 
diplomatic  negotiations  for  the  admission  of  new  members.  The 
London  bureau  will  act  as  a  central  organ  for  purposes  of  com- 
munication, while  in  the  individual  countries  certain  police  authori- 
ties, as,  for  instance,  the  police  presidency  of  Berlin,  have  been 
designated  to  act  as  national  bureaus. 

The  Paris  conference  of  April,  1910,  extended  the  methods  of 
international  police  cooperation  to  the  suppression  of  immoral 
writings  and  objects.  The  publication  or  manufacture  of,  and  the 
commerce  in,  such  things  is  to  be  generally  forbidden ;  infractions 
may  be  tried  in  any  country  where  the  delict  or  some  of  its  ele- 
ments has  transpired.  By  a  "  project  of  arrangement  "  each  state 
binds  itself  to  designate  some  authority  to  give  information  to  the 
agents  of  the  other  governments  respecting  such  cases.  Fifteen 
powers  were  represented  at  this  conference. 

§  22.  The  South  American  Police  Convention.1  —  The  Latin- 
American  scientific  congress,  which  met  at  Rio  de  Janeiro  in  1905, 
after  a  discussion  of  the  best  means  of  interchanging  information 
for  identifying  criminals,  passed  resolutions  calling  for  the  holding 
of  an  American  police  congress  for  the  purpose  of  making  an  agree- 
ment upon  this  point.  As  a  result  a  police  conference  met  at  the 
city  of  Buenos  Aires  in  1905.  It  included  delegates  of  the  police 
administrations  of  the  province,  as  well  as  the  city  of  Buenos  Aires, 
of  the  city  of  Rio  de  Janeiro,  of  Santiago,  and  of  Montevideo.  It 
was  therefore  purely  an  administrative  conference,  representing  not. 
the  national  governments  in  their  entirety  but  only  the  police 
administration  of  the  capital  cities.  The  convention  adopted  was 
an  arrangement  for  the  cooperation  between  these  administrations 

1  "Confereneia  internaeional  de  polieia,  eonvento  celebrado",  Buenos 
Aires,  1905;  Almandos,  L.  R.,  " Dactiloscopia  Argentina",  La  Plata, 
1909. 

468 


Chap.    XII]  INTERNATIONAL   EXPERT   UNIONS  [§  22 

for  their  mutual  assistance.  Paraguay  later  also  gave  its  adherence. 
The  convention  provides  for  the  interchange  of  data  for  the  purpose 
of  identifying  criminals  and  suspicious  characters.  For  purposes 
of  identification  the  Argentinian  system  of  dactyloscopy,  together 
with  a  system  of  morphological  description,  was  adopted,  to  be 
used  in  common  by  all  the  administrations.  The  treaty  further 
provides  for  the  exchange  of  information  concerning  the  movements 
of  suspicious  characters. 


469 


§1] 


PART   III      UNIFICATION    OF   LAW  [Chap.    XIII 


Chapter  XIII 

THE  HARMONIZATION  OF  THE  RULES  FOR  CONFLICT 

OF   LAWS 

PART  I.     THE   RESULTS  OF  THE   HAGUE  CONFERENCES 
By  Friedrich  Meili  l 


§  1.  The  Hague  Conferences  of 
1893,  1894,  1900,  1904. 

(I)  The  Work  Accomplished  by  the 
Conferences. 

§  2.  A.  International  Civil  Pro- 
cedure. 

§3.     B.  International  Private  Law. 

§  4.  Same  :  The  Convention  upon 
Marriage. 

§  5.  Same :  The  Treaty  upon 
Divorce. 

§  6.     Same  :    The  Treaty  upon  the 


Guardianship    of    Minors, 
and  the  Draft  Convention 
upon  Interdiction. 
§  7.     Same :     The    Treaty   upon 

Succession. 
§  8.     C.    International     Law     of 
Bankruptcy. 
(II)    The  Future  Possibilities  of  Ac- 
complishment. 
§  9.     The    Prospects    of     Anglo- 
American  Cooperation. 
§  10.     Resume. 


§  1.  The  Hague  Conferences  of  1893,  1894,  1900,  and  1904.  — 
Almost  the  whole  of  Europe  assembled  at  The  Hague  in  1893  and 
1894  at  the  invitation  of  the  Government  of  the  Netherlands ; 
diplomats  and  international  jurists  represented  their  governments 
at  the  Conferences.  At  the  First  Conference  the  following  coun- 
tries were  represented  : 


1. 

The  German  Empire. 

8. 

Luxemburg. 

2. 

Austro-Hungary. 

9. 

Netherlands 

3. 

Belgium. 

10. 

Portugal. 

4. 

Denmark. 

11. 

Roumania. 

5. 

Spain. 

12. 

Russia. 

C». 

France. 

13. 

Switzerland. 

7. 

Italy. 

1  [Late  Professor  of  Private  International  Law  and  of  Comparative 
Law  at  the  University  of  Zurich,  Member  of  the  Institute  of  International 
Law,  Delegate  of  the  Swiss  Republic  to  the  Hague  Conferences  and  to 
the  Hague  Court  of  Arbitration,  etc.,  etc.  The  death  of  the  author  in 
1914  removed  Switzerland's  most  distinguished  international  publicist; 
an  extended  account  of  his  writings  and  other  activities  is  given  in  a 
Note  in  the  "Journal  of  the  American  Bar  Association",  1915,  I,  213. 

The  present  Chapter  is  a  reprint  (with  slight  omissions)  of  his  paper  read 
in  person  at  the  Universal  Congress  of  Lawyers  and  Jurists  at  the  Louisiana 
Purchase  World's  Exposition  of  1904  at  St.  Louis.  —  Ed.] 

470 


Chap.  XIII]  conflict  of  LAWS  [§  1 

At  the  Second  Conference,  Sweden  and  Norway  also  partici- 
pated. Servia  did  not  reply  to  the  invitation,  and  Greece  excused 
its  non-appearance.  Great  Britain  referred  to  the  peculiar  nature 
of  English  law  as  the  reason  for  not  sending  delegates.  In  1900 
all  the  countries  named  again  took  part.  In  1904  (May  and  June), 
a  delegate  appeared  representing  the  Empire  of  Japan ;  this  fact 
was  a  surprise  to  certain  of  the  delegates.  The  United  States  of 
America,  as  also  South  America,  have,  up  to  the  present,  taken  no 
part  whatever  in  the  Conferences. 

Jurists  have  been  occupied  for  centuries  with  the  question  as  to 
what  principles  shall  apply  when  two  or  more  systems  of  law  appear 
to  be  applicable  to  the  solving  of  a  dispute  of  law ;  the  problem 
arises  frequently  by  reason  of  the  great  mutual  intercourse  between 
subjects  of  the  different  states.  Historically,  the  question  dates 
back  as  far  as  early  mediaeval  Europe,  and  found  special  treatment 
in  the  Italian  cities.  Among  others,  the  question  was  taken  up  by 
Bartolus  (1314-1355  or  1357)  whom  Phillimore,  with  a  slight 
exaggeration,  denotes  in  his  "  Commentaries  upon  International 
Law  "  (IV,  3d  ed.,  p.  19)  as  "  the  fountain  of  private  international 
jurisprudence."  1  Later  it  was  the  so-called  Dutch  school  of  the 
seventeenth  century  which  developed  the  theory  of  the  "  collisio 
statutorum."  Its  principal  proposition  was  that  basically  no  state 
was  obliged  to  take  cognizance  of  foreign  private  law,  and  did  so 
only  out  of  courtesy.  English  and  Scotch  jurists  derived  their 
education  largely  from  the  Netherlands  in  the  seventeenth  century, 
and  it  was  they  who  established  this  doctrine  in  England.  As  the 
English  colonists  took  the  English  common  law  with  them  to 
America  (ef.  1  Kent's  "  Commentaries  on  American  Law",  p.  343), 
the  whole  complex  of  views  upon  international  private  law  went 
over  to  this  country  as  a  kind  of  article  of  export. 

There  is  no  doubt  that  the  principal  English  and  American 
authors  consider  the  so-called  "  comitas  gentium  "  as  the  basis  of 
private  international  law.  Kent  and  Story,  Phillimore  (Vol.  IV  is 
entitled  "Private  International  Law  or  Comity")  and  Twiss  ("Law 
of  Nations",  1,  p.  160)  have  expressed  this  view.  It  is  true 
Wharton  ("  Conflict  of  Laws  ",  §  1)  opposes  this,  and  Lorimer 

1  I  refer  in  this  connection  to  my  handbook  (Ziirich,  1902):  "Das 
internationale  Civil  und  Handelsrecht  auf  Grand  der  Theorie,  Gesetz- 
gebung  und  Praxis."  It  may  be  of  interest  to  the  legal  profession  in  general 
to  know  that  Mr.  Arthur  K.  Kuhn,  a  member  of  the  New  York  bar,  has 
translated  this  work  into  the  English  language,  with  additions  as  to  the 
American  and  English  theory  and  practice,  under  the  title,  "International 
Civil  and  Commercial  Law  as  Founded  upon  Theory,  Legislation  and 
Practice." 

471 


§  1]  PART    III      UNIFICATION    OF   LAW  [Chap.    XIII 

used  even  more  energetic  terms  when  he  said  ("  Institutes  of  the  Law 
of  Nations",  1,  p.  357)  "Private  international  relations  are  relations 
of  right  on  the  one  hand  and  duty  on  the  other  "  ;  and  then  after- 
wards he  calls  the  "  comitas  gentium  "  "  an  old  woman's  fable." 
However,  notwithstanding  this  energetic  opposition,  it  must  be  said 
that  the  Anglo-American  theory  of  international  private  law  suffers 
from  being  placed  upon  so  unsound  a  basis. 

In  view  of  the  fact  that  most  of  the  nations  of  Europe 
under  the  leadership  of  the  Netherlands  have  entered  into  con- 
ferences for  the  purpose  of  settling  questions  of  private  inter- 
national intercourse,  in  the  most  expedient  way,  by  the  establish- 
ment of  binding  rules,  we  may  say  that  they  have  definitely 
broken  away  from  that  historical  epoch  wherein  the  question 
was  merely  deemed  one  of  favor  or  courtesy.  Two  propositions 
are  thus  embraced : 

1.  Foreign  private  law  is,  upon  principle,  of  the  same  value 
as  the  internal. 

2.  There  is  a  legal  duty  to  apply  foreign  private  law  to  an  issue 
when  it  is  subjected  thereto. 

As  the  European  international  conferences  have  now  been 
repeatedly  held,  and  as  rules  have  been  accepted  for  solving  con- 
flicts of  law,  theories  many  centuries  old  may  be  deemed  as  sur- 
rendered and  definitely  done  away  with. 

As  it  is  my  purpose  to  discuss  the  principal  questions  of  the  four 
Hague  Conferences,  it  will  be  necessary  to  sketch  the  results  in 
outline,  avoiding  all  detail.  Some  slight  indication  of  the  manner 
of  procedure,  however,  will  be  in  point.  From  the  First  Conference, 
it  was  self-understood  that  the  French  language  should  be  the 
medium  of  expression,  and  so  it  remained.  Then,  too,  from  the 
very  beginning,  committees  were  appointed  to  discuss  particular 
topics  more  freely  and  in  detail,  and  thus  to  arrive  at  concrete 
solutions.  From  1900  onward  a  splendid  practice  arose  of  having 
the  various  governments  assume  attitudes  with  regard  to  concrete 
questions.  The  Government  of  the  Netherlands  then  collected 
these  comments  and  propositions  and  sent  them  in  due  time  to  the 
various  governments  with  those  of  the  special  committee  of  the 
Netherlands.  The  president  of  the  committee  for  the  time  being 
also  prepared  the  detailed  report  and  proposal  to  lay  before  the 
Conference  as  a  whole ;  sometimes  a  special  appointment  was  made 
for  a  report.  The  preparation  of  the  report  is  a  very  laborious 
task,  and  we  were  often  obliged  to  appeal  to  the  untiring  courtesy 

472 


Chap.    XIII]  CONFLICT  OF   LAWS  [§  2 

of  the  French  delegates.1  The  report  was  first  examined  and 
discussed  by  the  members  of  the  committee.  The  topic  then  came 
for  discussion  before  the  entire  Conference,  where,  of  course,  any 
delegate  could  propose  amendments.  As  a  rule  there  were  two 
readings.  The  second  was  usually  intended  only  for  correction  of 
the  text  and  for  further  discussing  and  voting  upon  the  questions. 
Still,  there  were  exceptions,  as,  for  instance,  where  at  the  last 
moment  the  president  of  the  Conference  discovered  some  new  com- 
bination for  the  solution  of  existing  differences.  But  this  did  not 
often  occur.  State-Councilor  Asser,  who  was  re-elected  president 
at  each  of  the  four  Conferences,  proved  himself  so  much  the  soul 
of  the  whole  enterprise  as  always  to  discover  a  solution  at  the  proper 
time. 

I.   The  Work  Accomplished  by  the  Conferences 

The  four  international  Conferences  already  held  have  under- 
taken the  most  varied  topics. 

The  work  of  the  international  Conferences  should  properly  be 
divided  into  three  groups,  for  they  represent  subjects  which,  on 
principle,  should  be  kept  separate  : 

(A)  International  Civil  Procedure. 

(B)  International  Private  Law. 

(C)  International  Bankruptcy  Law. 

§  2.  A.  International  Civil  Procedure.  —  In  1899  a  treaty  was 
ratified  between  the  fourteen  nations  which  were  represented  at 
the  Second  Conference.  It  bears  the  following  title  :  "  Convention 
pour  etablir  des  regies  communes  concernant  plusieurs  matieres 
de  droit  international  prive  se  rapportant  a  la  procedure  civile." 
The  exchange  of  ratifications  occurred  April  27,  1899.  The  dura- 
tion of  the  treaty  was  for  five  years,  i.e.,  until  April  27,  1904 ;  but 
as  no  state  gave  notice  of  termination  before  that  time,  the  treaty 
is  extended  until  April  27,  1909,  in  accordance  with  an  express 
provision.2  In  view  of  the  fact  that  practice  has  shown  a  number 
of  defects  in  this  treaty  its  revision  was  part  of  the  order  of  the 

1  It  is  a  privilege  for  me  to  refer  here,  with  particular  recognition,  to  the 
services  of  the  celebrated  French  internationalist,  L.  Renault,  under  whose 
presidence  I  labored  at  each  Conference. 

2  The  treaty  is  printed  in  French  and  German  in  the  appendix  to  my 
pamphlet  "Das  internationale  Privatrecht  und  die  Staatenkonferenzen  im 
Haag"  (Zurich,  1900).  See  also  C.  D.  Asser  in  "Report  of  the  Twentieth 
Conference  of  the  International  Law  Association"  (London,  1901),  p.  299. 
The  text  is  printed  in  English  at  p.  305.  See  also  T.  M.  C.  Asser :  "La 
convention  de  la  Haye  du  14  Novembre,  1896,  relative  a  la  procedure 
civile"  (1901). 

473 


§  2]  PART   III      UNIFICATION    OF    LAW  [ClIAP.    XIII 

day  for  the  Conference  of  1904,  and  in  fact  a  new  treaty  has  been 
elaborated  to  take  the  place  of  the  old  ;  naturally  the  contracting 
states  are  at  liberty  to  conclude  a  new  treaty  at  any  time.  The 
present  Hague  Convention  deals  with  the  following  topics: 

(a)  Communication  of  acts,  judicial  and  extra-judicial  (notices, 
transfers,  citations). 

(b)  Rogatory  letters  or  commissions. 

(c)  Alien  security. 

(d)  Procedure  in  the  case  of  poor  persons. 

(e)  Imprisonment  for  debt  ("  contrainte  par  corps  "). 

The  provisions  upon  all  these  subjects  are  those  which  are  of 
importance  to  international  intercourse  —  the  internal  or  local  law 
remained  for  the  most  part  untouched.  Thus,  for  instance,  im- 
prisonment for  debt  was  not  directly  done  away  with,  but  it  was 
stated  to  be  applicable  as  against  aliens  only  in  case  it  was  per- 
missible against  native  subjects.1 

Throughout  the  territory  in  which  the  treaty  is  in  effect,  the 
communication  of  legal  acts  (in  the  broadest  sense)  has  been  ele- 
vated to  the  position  of  a  formal  obligation  in  international  law, 
and  a  refusal  is  justifiable  only  in  the  event  of  most  particular 


reasons 


So  far  as  citations  are  concerned,  it  is  obviously  a  demand  of 
justice  that  the  particular  person  shall  actually  receive  them  when 
in  a  foreign  country,  for  otherwise  the  action  will  have  been  based 
upon  a  doubtful  fiction.  A  certain  guaranty  for  the  fulfilment  of 
this  requirement  has  been  obtained  in  so  far  as  the  forwarding  of 
documents  is  now  a  treaty  obligation.  On  the  other  hand,  it  can- 
not be  denied  that  the  system  existing  in  some  European  countries, 
of  a  "  remise  au  parquet  "  (France,  Italy),3  or  the  delivery  of  the 
citation  to  the  clerk  of  the  court  (Austria),  has  not  yet  been  done 
away  with.  The  question  has  arisen  in  practice  as  to  whether  the 
communication  of  legal  documents,  provided  for  in  Article  1  of  the 
treaty,  is  complete  upon  delivery  to  the  local  officials,  or  not  until 
delivered  to  the  addressee.  But  the  Conference  did  not  wish  to 
encroach  upon  the  internal  law  of  procedure,  and  to  this  effect  the 

1  Cf.  Kleinfeller,  "Ueber  den  Einfluss  der  Konkurseroffnung  auf  die 
Personalhaft  mit  Riicksickt  auf  Art.  17  des  Haager  Abkommens ",  in 
"Z.  fiirinternationalesPrivat-nnd6ffentlieh.es  Recht",  XIII,  pp.  1-11. 
The  statement  made  in  my  book:  "Das  Internationale  Zivilprozessrecht 
auf  Grand  der  Theorie,  Gesetzgebung  und  Praxis  ",  Zurich,  1904,  p.  30, 
is  subject  to  correction. 

2  This  has  also  been  properly  stated  by  C.  D.  Asser,  cited  supra,  p.  301. 
Cf.  also  my  book,  "Das  internationale  Zivilprozessrecht." 

3  Cf.  my  "Internationales  Zivilprozessrecht ",  pp.  182  et  seq. 

474 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  2 

treaty  had  been  interpreted  in  the  reports  elaborated  in  the  several 
states,  in  connection  with  the  granting  of  the  parliamentary 
sanction.  At  the  Fourth  Conference  the  matter  was  made  entirely 
clear.  Belgium  proposed  bluntly  to  insert  the  following  clause 
in  the  treaty : 

"La  signification  ne  produit  son  effet  qu'a  partir  de  l'accomplisse- 
ment  de  ces  formalites"  (i.e.,  after  actual  delivery  to  the  party  des- 
ignated). 

But  the  Fourth  Conference  refused  to  go  so  far,  and  merely 
expressed  the  wish  that  the  system  of  "  remise  au  parquet  "  (and  the 
like)  should  be  abolished  by  means  of  revision  of  the  internal  law 
or  by  treaty.  It  is  precisely  here  that  the  Conference  showed 
clearly  how  carefully  it  avoided  encroaching  upon  the  positive 
legislation  of  the  various  states.  I  also  voted  to  this  effect, 
although  I  regret  exceedingly  the  existence  of  such  systems. 

Particularly  important  for  the  development  of  the  law  is  the 
provision  whereby  the  states  obligate  themselves  for  the  execution 
of  letters  rogatory.  Within  the  territory  affected  by  The  Hague 
treaty,  a  peculiarly  important  obligation  of  international  law  has 
thus  been  established,  and  I  hasten  to  add  that  the  revisory  project 
of  1904  has  even  strengthened  it  (see  e.g.  Art.  11).  The  proposition 
was  also  established,  that  if  the  court  to  which  the  commission  is 
addressed  is  not,  or  is  no  longer  competent,  it  shall  be  forwarded  to 
the  court  actually  competent.  And  as  to  the  revision  of  1904 
the  following  important  addition  was  made  (Art.  11)  : 

"L'autorite  requerante  sera,  si  elle  le  demande,  informee  de  la 
date  et  du  lieu  oil  il  sera  procede  a  la  mesure  sollicitee  afin  que  la 
partie  interessee  soit  en  etat  d'y  assister." 

The  present  convention  placed  the  right  to  accord  or  refuse  assis- 
tance by  way  of  the  execution  of  letters  rogatory  (and  the  delivery 
of  documents)  within  positive  boundaries,  in  that  Art.  2  (see  also 
Art.  7)  provides  that  a  refusal  is  justifiable,  only  if  the  state  within 
which  the  assistance  is  to  be  accorded  is  of  the  opinion  that  its 
sovereignty  or  safety  is  endangered.  It  was  intended  in  this  way 
that  international  assistance  should  be  extended.  But  it  cannot 
be  demanded,  for  example,  where  the  inquiry  concerns  matters 
which  the  nation  whose  aid  is  required  deems  a  state  secret  or 
which  refer  to  secret  governmental  information.1 

1  Cf.  as  to  the  details  of  my  book,  "Internationales  Zivilprozessrecht ", 
p.  55. 

475 


§  2]  PART    III      UNIFICATION    OF    LAW  [Chap.    XIII 

Of  further  importance  is  the  fact  that  the  treaty  provides  that 

attention  nun/  be  given  to  some  particular  forms  of  law  of  the  state 
from  which  the  commission  emanates  (Art.  10).  Some  sy  tern-  of 
law  forbid  an  oath  to  be  taken  l>y  the  parties  to  the  action,  wit- 
nesses or  experts,  or  do  not  permit  the  presence  of  the  parties 
and  their  representatives  at  the  taking  of  testimony.  In  such  ca 
a  concession  may  be  made  "  ex  comitate  gentium  "  if  the  state 
from  which  the  commission  emanates  makes  the  request  and  tin- 
state  executing  it  does  not  forbid  the  procedure  desired. 

The  original  treaty  did  not  regulate  the  question  of  the  costs  of 
commissions,  but  the  revisory  draft  of  1904  has  done  so;  it 
establishes  the  proposition  that  commissions  are  to  be  executed 
without  costs,  except  the  expenses  of  witnesses  and  experts  and 
those  costs  which  arise  from  the  intervention  of  an  official  ("  huis- 
sier  ")  for  the  purpose  of  compulsory  citation  of  witnesses  (Art.  16). 
If  this  principle  be  accepted,  the  proposition  will  have  been  recog- 
nized that  the  according  of  assistance  in  legal  matters,  in  the 
broadest  sense  of  the  term,  is  a  universal  duty  on  the  part  of  the 
nations. 

The  Hague  treaty  abolished  also  alien  security,  or  that  which  a 
plaintiff  was  obliged  to  give  by  reason  of  being  a  foreign  subject, 
or  of  having  no  residence  in  the  land.  Herein  lies,  in  my  opinion, 
very  considerable  progress,  as  the  giving  of  security  unreasonably 
impedes  the  prosecution  of  subjective  rights. 

On  the  other  hand,  the  international  execution  of  judgments  has 
been  secured,  so  far  as  concerns  processual  costs.  As  is  well 
known,  the  question  of  the  execution  of  foreign  judgments  is  the 
most  difficult  to  be  found  anywhere.  Both  the  Institut  de  droit 
international  and  the  International  Law  Association  have  labored 
strenuously  in  this  connection1  and  their  work  is  to  be  deservedly 
appreciated.  At  the  meeting  of  the  International  Law  Association 
at  Rouen  in  1900  a  draft  was  advanced  by  Alderson  Foote  which 
is  printed  in  English  in  the  "  Report  of  the  Nineteenth  Confer- 
ence "  (London,  1900),  pp.  196  et  seq.,  and  in  French  at  p.  204.  To 
this  project  certain  amendments  were  proposed  for  the  meeting  in 
Glasgow  ("  Report  of  the  Twentieth  Conference",  pp.  274  et  seq.). 
A  number  of  critical  remarks  are  also  to  be  found  in  the  later  report, 
pp.  282-298. 

The   question  of  the  execution  of  judgments  was  again  dis- 

1  I  refer  to  my  publication,  "  Geschichte  und  System  des  internationalen 
Privatrechts  im  Grundriss"  (Leipzig,  1892).  pp.  170.  171 ;  and  also  to  my 
pamphlet,  "Reflexionen  uber  die  Exekution  auswartiger  Zivilurteile " 
(Zurich,  1902). 

476 


Chap,   XIII]  CONFLICT  OF  LAWS  [§  2 

cussed  at  the  meeting  of  the  International  Law  Association  in 
Glasgow  in  1901,  but  no  conclusion  was  reached  ("  Report  of  the 
Twentieth  Conference  ",  London,  1901,  pp.  309-325). 

The  International  Law  Association  has  lately  concluded  to 
limit  an  agreement  as  to  the  recognition  of  foreign  judgments, 
to  judgments  for  a  sum  of  money.  Art.  1  of  the  draft  reads  as 
follows:  ("Report  of  the  Nineteenth  Conference",  London,  1901, 
pp.  19G,  197.) 

"This  convention  shall  relate  to  and  operate  in  respect  to  the 
following  judgments  only,  viz.,  judgments  for  the  payment  of  an  ascer- 
tained sum  of  money,  whether  by  way  of  debt,  damages  or  costs,  by  one 
person  to  another.  .  .  ." 

To  Art.  1  of  the  draft  of  A.  Foote  there  is  the  following  note : 
("  Report  of  the  Nineteenth  Conference  ",  1900,  London,  1901, 
p.  197.) 

"It  is  suggested  that  there  is  no  practical  chance  of  obtaining 
legislation,  or  even  agreement,  at  any  rate  for  the  present,  except  by 
confining  the  attempt  to  the  simple  case  of  a  judgment  in  personam 
for  an  ascertained  sum  of  money." 

It  is  just  these  expressions  which  the  two  principal  societies 
of  international  law  have  made,  that  give  manifest  proof  that 
the  international  conferences  have  acted  wisely  in  being  satisfied 
for  the  present  with  the  proposition  that  judgments  for  costs  shall 
be  executed  by  the  states.  Progress  in  the  world  almost  always 
starts  in  a  small  way,  and  if  the  matter  proves  satisfactory  as  to 
that  much,  greater  results  can  so  much  more  surely  be  expected 
in  the  same  direction.  I  may  add  that  the  Fourth  Conference,  of 
1904,  engaged  itself  more  in  detail  with  this  fragment  for  the  exe- 
cution of  judgments,  and  especially  that  the  gratuitousness  of  the 
execution  was  agreed  upon  (Art.  18).  I  would  like,  furthermore, 
to  emphasize  that  the  whole  subject  was  formerly  attacked  in  the 
wrong  way.  Its  regulation  can  be  arrived  at  correctly  only  in 
connection  with  an  agreement  as  to  the  fora.1 

Finally,  The  Hague  Convention  contains  a  provision  in  favor 
of  poor  persons.  Foreign  subjects  shall  be  admitted  to  the  privileges 
of  poor  persons  equally  with  natives.  In  my  opinion,  this  repre- 
sents progress  from  the  point  of  view  of  international  philanthropy. 

1  I  developed  this  idea  further  in  my  pamphlet,  "Reflexionen  iiber  die 
Exekution  auswartiger  Zivilurteile."  Naturally,  I  will  again  recur  to  it 
in  the  last  part  of  my  book,  "Das  internationale  Zivilprozessrecht." 

477 


§  2]  PART    III      UNIFICATION    OF    LAW  [ClIAP.    XIII 

There  are  those  who  include  hereunder  the  exemption  from  giving 
security  and  the  right  to  gratuitous  representation.  In  this  con- 
nection, reference  may  be  made  to  a  report  of  Coldstream  of 
Edinburgh:  "The  expediency  of  uniformity  in  the  procedure  of 
the  costs  of  civilized  countries  with  regard  to  pauper  litigants  ", 
and  to  the  "  Twenty-first  Report  of  the  International  Law  Associa- 
tion ",  p.  39. 

§3.  B.  International  Private  Law. — The  Hague  Conference 
elaborated  draft  treaties  dealing  with  conflicts  in  various  depart- 
ments of  the  private  law,  viz. : 

(a)  Upon  certain  topics  of  family  law.1 

(1)  Entrance  into  marriage.  (2)  Divorce.  (3)  Guardianship  of 
minors. 

Each  one  of  these  topics  is  treated  of  in  a  convention.  The 
three  treaties  were  accepted  by  the  parliaments  of  the  following 
seven  nations,  ratifications  being  exchanged  on  the  first  day  of 
June,  1904,  at  The  Hague,  while  we  were  assembled  at  the  Fourth 
Conference : 2  France,  Germany,  Belgium,  Netherlands,  Luxem- 
burg, Roumania,  and  Sweden. 

The  other  nations  have  not  yet  expressed  a  determination  to 
join,  though  Austro-Hungary,  Italy,  and  probably  also  Spain  and 
Portugal  will  do  so  before  the  end  of  1904.  Switzerland  has,  for 
various  reasons,  not  been  in  a  hurry  to  lay  the  matter  before  the 
federal  parliament.  In  the  first  place,  the  concessions  demanded 
for  the  benefit  of  the  domiciliary  law  in  regard  to  guardianship 
were  not  made,  and  furthermore,  a  difficult  situation  is  presented 
for  the  reason  that  the  work  of  codifying  a  civil  code  is  just  now 
occupying  foremost  attention. 

(b)  Upon  the  effects  of  marriage  upon  the  personal  rights  of  spouses 
and  their  rights  of  property. 

In  its  "  projet  de  programme  "  of  December,  1897,  the  Govern- 
ment of  the  Netherlands  proposed  a  draft  entitled,  "  Disposi- 
tions concernant  les  effets  du  mariage  sur  les  biens  des  epoux."  3 

1  Upon  the  two  treaties  regarding  entrance  into  marriage  and  divorce, 
certain  comments  are  to  be  found  in  the  work  of  Leske  and  Lowenfeld :  "Die 
Rechtsverfolgung  im  internationalen  Verkehr."  Fourth  volume:  "Das 
Eherecht  der  europaischen  Staaten  und  ihrer  Kolonien  ",  1904,  pp.  986-996. 

2  Simeon  E.  Baldwin  discusses  these  treaties  under  the  title,  "The  New 
Code  of  International  Family  Law"  ("Yale  Law  Journal",  June,  1903, 
p.  487).  This  author  is  in  error,  however,  in  stating  that  the  treaties  went 
into  effect,  as  to  most  of  the  participating  nations,  on  August  12,  1902. 
He  was  led  to  believe  that  the  signing  by  the  diplomatic  representatives  on 
June  12,  1902,  already  involved  the  exchange  of  ratifications. 

3  The  draft  is  printed  in  my  pamphlet,  "Das  internationale  Privat- 
recht  und  die  Staatenkonferenzen  im  Haag  ",  pp.  60,  61. 

478 


Chap.   XIIl]  CONFLICT   OF   LAWS  [§  3 

It  was  proposed  to  divide  the  subject-matter  for  the  Third  Con- 
ference as  follows : 

"A.  Les  effets  du  mariage  sur  l'etat  et  la  capacite  de  la  femme 
('Documents  relatifs  a  la  quatrieme  Conference  ',  1904,  p.  52). 

"B.  Les  effets  du  mariage  sur  les  biens  des  epoux  ('Documents ', 
p.  64). 

"C.  Les  effets  du  divorce  et  de  la  separation  de  corps  ('Docu- 
ments ',  p.  80) ". 

The  Fourth  Conference  then  worked  out  a  uniform  draft  en- 
titled : 

"Projet  d'une  convention  concernant  les  conflits  de  lois  relatifs 
aux  effets  du  mariage  sur  les  droits  et  les  devoirs  des  epoux  dans  leurs 
rapports  personnels  et  sur  les  biens  des  epoux." 

Meanwhile,  I  may  mention  here  that  this  draft  treaty  is  not  yet 
ripe  for  acceptance ;  there  was  such  an  extraordinary  number  of 
difficulties  discovered  when  it  was  tested  in  detail,  that  a  more  far- 
reaching  study  of  it  is  required.  Under  these  circumstances,  it 
would  not  be  to  the  purpose  to  discuss  it  further  here.1 

(c)  Upon  the  law  of  succession.  The  First  Conference  was  al- 
ready well  aware  that  the  proposal  could  not  be  viewed  as  a  definite 
one,  for  even  the  introduction  ("  Actes  de  la  Conference,  I  partie  ") 
contained  a  reservation  ("  sous  la  reserve  expresse  des  derogations 
que  chaque  etat  pourra  juger  necessaire,  au  point  de  vue  du  droit 
public  ou  de  l'interet  social  .  .  .").  The  Second  Conference 
again  occupied  itself  with  the  subject  ("  Actes  de  la  deuxieme  Con- 
ference", p.  125),  as  did  also  the  Third  Conference  ("  Actes  de  la 
troisieme  Conference  ",  p.  107),  which  elaborated  a  draft  treaty 
entitled : 

"Projet  d'une  Convention  pour  regler  les  conflits  de  lois  relative- 
ment  aux  successions,  aux  testaments,  et  aux  donations  a  cause  de 
mort." 

But  this  treaty  was  not  received  with  enthusiasm  by  the  partici- 
pating nations,  and  the  Government  of  the  Netherlands  preferred 
not  to  advise  a  preliminary  signing  by  the  diplomats.  It  thus 
becomes  clear  how  the  Fourth  Conference  again  took  up  the  subject 
upon  the  basis  of  a  whole  series  of  criticisms  made  by  the  several 
nations  ("Documents  relatifs  a  la  quatrieme  Conference",  1904, 

1  I  refer  to  my  pamphlet,  "Das  internationale  Privatreeht  und  die 
Staatenkonferenzen  im  Haag",  pp.  60-66. 

479 


§  3]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

p.  28) .  At  the  Fourth  Conference,  a  tendency  was  shown  to  deal 
only  with  certain  isolated  questions  of  the  law  of  succession  and 
not  with  all  the  questions  connected  therewith.  It  was,  moreover, 
expressly  declared  that  the  convention  was  not  intended  to  regulate : 

(1)  gifts, 

(2)  contracts  for  succession, 

(3)  the  position  of  juristic  persons  in  matters  of  succession. 
Thus  it  comes  that  the  draft  convention  now  bears  the  title : 

"Projet  d'une  Convention  sur  le  conflit  de  lois  en  matiere  de  suc- 
cessions et  de  testaments." 

The  Conference  of  1904  expressed  the  following  desire  : 

"Que  le  Gouvernement  des  Pays-Bas  veuille  bien,  aussitot  que 
possible  apres  la  signature  de  la  Convention  sur  les  successions  et  les 
testaments,  convoquer  une  nouvelle  Conference,  qui  aurait  pour 
mandat  de  preparer  le  protocole  additionel  vise  a  l'art.  6,  §  2  de  la 
dite  Convention  aussi  que  la  Convention  relative  a  la  competence  et 
a  la  procedure  en  matiere  de  successions  et  de  testaments  visee  a 
l'art.  8." 

Art.  6,  §  2,  here  cited,  refers  to  the  specification  of  imperative 
or  prohibitive  rules  of  law,  the  applications  of  which  are  demanded 
by  the  internal  or  local  law,  even  though  a  foreign  system  of  law, 
in  successory  matters,  be  applicable  in  other  respects. 

And  Art.  8  provides : 

"Aussitot  que  possible  apres  la  signature  de  la  presente  Conven- 
tion, les  Etats  contractants  etabliront  d'un  commun  accord  les  regies 
concernant  la  competence  et  la  procedure  en  matiere  de  successions 
et  de  testaments. 

"La  convention  contenant  ces  regies  sera  ratifiee  en  meme  temps 
que  la  presente  Convention." 

The  conventions  bearing  upon  private  law  prepared  at  The 
Hague  refer  to  family  law  and  succession ;  it  would  seem  appro- 
priate to  discuss  briefly  their  principal  features. 

§  4.  Same  :  1.  The  Convention  upon  Marriage.  —  This  conven- 
tion refers  only  to  the  conditions  necessary  for  the  validity  of  the 
marriage,  and  in  this  connection  sets  up  the  following  rules  —  I 
will  here  again  restrict  myself  to  the  main  points : 

"Art.  1.  The  right  of  contracting  marriage  is  determined  by  the 
national  law  of  each  of  the  parties  intending  to  be  married.  .  .  ." 

480 


Chap.   XII I]  CONFLICT  OF  LAWS  [§  4 

The  standard  rule  for  the  solution  of  conflicts  of  law  in  Con- 
tinental Europe  is  the  national  law,  whenever  the  question  is  one 
of  the  so-called  personal  statute  (or,  status)  and  this  arises  when 
capacity  inherent  in  personal  rights  is  under  discussion.  This 
embraces,  without  doubt,  the  capacity  to  enter  into  marriage. 
The  laws  of  the  nations  of  Continental  Europe  hold  that  the 
national  state  alone  is  in  proper  position  to  determine  the  con- 
ditions necessary  for  the  conclusion  of  the  marriage  tie.  Of  special 
importance  in  this  connection  is  the  age  necessary,  which  varies 
with  climatic  conditions.  There  are  then  an  array  of  further 
points  connected  with  social  and  moral  order,  as,  for  instance, 
impediments  connected  with  relationship.  It  is  intended  in 
Europe  that  authoritative  control  by  the  "  lex  patriae  "  shall  be  a 
guaranty  that  the  spouses  shall  not  conjure  with  the  local  laws  by 
placing  themselves,  for  a  shorter  or  longer  time,  under  a  different 
system  of  law.     Art.  1  is  thus  explained. 

Upon  this  momentous  question,  the  English-American  con- 
ception differs  from  that  of  Continental  Europe ;  for  the  former 
lets  it  depend  upon  the  law  of  the  domicile,  yea,  even  that  of  the 
mere  place  of  sojourn.  And  I  must  add  that  England  became 
the  matrimonial  Eldorado  for  persons  desirous  of  marrying  and 
who  were  unable  to  reach  the  goal  in  Continental  Europe,  much 
in  the  same  way  as  was  Scotland  for  English  men  and  women, 
when  Gretna  Green  marriages  played  a  role.  In  fact,  so  long  as 
conditions  for  the  validity  of  a  marriage  are  less  irksome  in  other 
more  or  less  accessible  countries,  it  is  really  only  a  question  of  the 
pocket-book,  whether  the  marriage  cannot  be  entered  into  in 
opposition  to  the  national  law.  The  Hague  Convention  intends 
that  an  end  shall  be  put  to  this  situation  within  the  territory  it 
affects. 

It  is  true,  however,  that  the  principle  has  been  moderated  so 
as  particularly  to  meet  the  demands  of  Switzerland.  The  follow- 
ing clause  has  been  added  : 

"...  unless  such  national  law  refers  expressly  to  some  other 
law." 

Art.  25  of  the  Swiss  federal  statute  upon  civil  status  and  mar- 
riages provides : 

"Sera  reconnu  comme  valable  dans  toute  la  Confederation  le 
mariage  conclu  dans  les  cantons  ou  a  Vetranger,  conformement  a,  la 
legislation  qui  y  est  en  vigueur." 

481 


§  4]  PART   III      UNIFICATION    OF    LAW  [CHAP.    XIII 

And  the  clause  cited  represents  a  concession  made  to  Switzer- 
land. I  pointed  out  at  the  time,  before  the  committee  on  mar- 
riage law,  that  there  was  no  sufficient  ground  to  force  Switzerland 
to  refer  to  the  national  law,  upon  a  topic  in  which  her  laws  were 
so  international  in  spirit  as  to  recognize  all  marriages  concluded 
abroad  according  to  the  law  there  in  force. 

It  was  further  said,  that  the  legislation  of  the  domicile  should 
also  be  given  a  certain  influence,  because  it  cannot  permit  the 
conclusion  of  a  marriage  under  all  circumstances  simply  because 
the  national  law  permits  it.  The  international  conferences  found 
that  in  certain  particularly  salient  cases,  the  domiciliary  state  need 
on  no  account  permit  the  conclusion  of  a  marriage.  Three  cases 
are  cited  in  Art.  2,  which  reads  as  follows : 

"Art.  2.  The  law  Loci  Celebrationis  can  refuse  to  marry  aliens  if 
their  marriage  would  be  contrary  to  its  own  laws  regarding : 

"  1st.  Prohibited  degrees  of  relationship  for  which  there  is  an 
absolute  prohibition. 

"2d.  Absolute  prohibition  to  marry  brought  against  parties 
guilty  of  adultery,  for  which  reason  the  marriage  of  one  of  them  has 
been  dissolved. 

"3d.  Prohibition  to  intermarry  brought  against  persons  con- 
demned for  having  attempted  to  murder  the  husband  or  wife  of  one 
of  the  parties." 

It  is  then  further  provided  : 

"A  marriage  performed  contrary  to  one  of  the  above-mentioned 
prescriptions  shall  not  be  void,  provided  it  would  be  valid  according 
to  the  law  referred  to  in  Art.  1." 

"Art.  3.  The  Lex  Loci  Celebrationis  can  permit  marriage  of 
aliens  notwithstanding  the  prohibitions  of  the  law  mentioned  in  Art. 
1,  when  these  are  exclusively  founded  on  reasons  of  religious  character  ; 
but  the  other  countries  have  the  right  not  to  consider  as  valid  a  mar- 
riage performed  under  such  circumstances." 

The  conference  has  here  tempered  the  influence  of  the  national 
law  in  the  interest  of  the  freedom  of  the  marriage  tie.  Where  the 
national  law  forbids  a  marriage  for  religious  reasons,  e.g.,  between 
Christians  and  Jews,  another  state  is  not  obliged  to  forbid  the 
conclusion  of  the  marriage.  This  would  be  in  contravention  of  the 
great  principle  of  freedom,  and  I  moved  the  committee  at  the  time 
to  respect  it,  and  succeeded  ("  Actes  de  la  troisieme  Conference", 
1900,  p.  174).     A  balance  upon  this  proposition  lies  in  the  fact 

482 


Chap.    XIII]  CONFLICT    OF   LAWS  [§  5 

that  other  nations  (besides  that  of  the  "  lex  loci  celebrationis  ") 
may  regard  such  a  marriage  as  invalid. 
I  will  cite  still  another  provision,  viz. : 

"Art.  5.  The  marriage  performed  in  accordance  with  the  law 
Loci  Celebrationis  will  be  as  regards  its  form  everywhere  considered 
a  valid  marriage. 

"  It  is,  however,  understood  that  countries  whose  legislation  requires 
a  religious  marriage  ceremony  will  be  free  to  consider  as  invalid  a  mar- 
riage performed  by  their  subjects  abroad,  where  this  religious  require- 
ment has  not  been  fulfilled. 

"The  requirements  of  the  national  law  re  publications  must  be 
fulfilled,  but  the  absence  of  these  publications  will  not  render  the 
marriage  voidable  in  other  countries,  excepting  in  those  countries 
whose  laws  have  been  disregarded. 

"  An  authentic  copy  of  the  Marriage  Act  shall  be  sent  to  the  authori- 
ties of  the  countries  of  both  husband  and  wife." 

The  well-known  rule  of  "  locus  regit  actum  "  is  here  also  appli- 
cable. But  at  the  demand  of  Russia  we  agreed  to  a  modification 
of  the  rule,  as  this  nation  only  recognizes  marriages  solemnized  by 
its  church.  It  is  for  this  reason  that  orthodox  Russians  marrying 
in  Switzerland  are  always  notified  to  have  the  marriage  solemnized 
at  the  Russian  church  in  Geneva,  after  the  civil  ceremony.  Ac- 
cording to  Art.  5,  Russia  is  entitled  to  regard  marriages  performed 
abroad  without  a  solemnization  by  the  Russian  church  as  invalid 
within  its  territory.  But  this  concession  was  not  sufficient  for  Russia, 
and  it  did  not  join  the  convention ;  it  advanced  the  claim  that 
marriages  of  Russians  performed  abroad  according  to  the  form  of 
civil  ceremony  there  in  force,  should  be  regarded  as  invalid  every- 
where. This  unwarranted  mastery  by  the  "  lex  patriae  "  could 
not  be  acceded  to  by  us.  As  Russia  therefore  did  not  join  the 
convention,  the  concession  made  for  it  was  useless.  The  result 
shows  that,  under  circumstances,  too  much  courtesy  can  be  shown 
to  a  state  ! 

§  5.  Same  :  2.  The  Treaty  upon  Divorce.  —  The  regulation  of 
divorce  in  international  matters  was  equally  as  important  as  that 
of  the  entrance  into  marriage.  As  early  as  the  First  Conference, 
I  moved  ("Actes",  1893,  p.  71)  that  this  subject  be  placed  upon 
the  "  tractandum  "  list.     I  will  take  up  two  questions  here. 

1.  It  was  difficult  to  find  a  principle  to  serve  as  a  solution  here, 
in  view  of  the  fact  that  legislation  upon  divorce  differs  greatly 
throughout  the  world  ;  that  particularly  certain  Catholic  countries 

483 


§  5]  PART   III       UNIFICATION    OF    LAW  [Chap.    XIII 

(Austria,  Italy,  Spain,  Portugal)  recognize  only  a  "  separation  de 
corps  "  of  their  Catholic  subjects  and  not  an  absolute  divorce ; 
that  other  nations  only  permit  of  the  latter ;  that  eertain  systems 
of  law  recognize  many  grounds  for  divorce,  while  others  have  only 
a  few  (England,  America).  Now,  the  Institute  of  International 
Law  proposed  the  following  provision  in  its  "  Reglement  dv<, 
conflits  de  lois  en  matiere  de  mariage  et  de  divorce :  "  l 

"Art.  17.  La  question  de  savoir  si  un  divorce  est  legalement 
admissible  ou  non  depend  de  la  loi  nationale  des  epoux. 

"Art.  18.  Si  le  divorce  est  admis  en  principe  par  la  loi  nationale, 
les  causes  qui  le  motivent  doivent  etre  celles  de  la  loi  dn  lieu  ou  Taction 
est  intentee. 

"  Le  divorce  ainsi  prononce  par  le  tribunal  competent  sera  reconnu 
partout." 

From  the  very  beginning,  I  maintained  before  the  committee 
that  this  idea  developed  by  the  Institute  represented  a  splendid 
means  of  reconciling  the  two  main  principles  of  "  lex  patriae  "  and 
"  lex  domicilii."  I  pointed  out  that  the  primary  question  in  this 
branch  of  law  was  whether  the  nations  recognized  absolute  divorce 
at  all,  and  that  the  particular  grounds  were  a  secondary  question. 
The  first  question  should  therefore  be  determined  by  the  "  lex 
patriae."  If  denied  by  the  national  law,  the  domiciliary  state 
cannot  grant  the  divorce.  Thus  Italians,  Portuguese,  and  Span- 
iards could  not  be  divorced  at  their  place  of  domicile,  even 
though  the  law  of  that  place  recognized  absolute  divorce.  If, 
however,  the  national  State  permits  of  divorce,  the  grounds  of 
divorce  will  be  determined  by  the  law  of  the  domicile. 

But  this  "  sententia  media  "  advanced  by  me  did  not  gain  a 
victory  in  the  committee. 

In  1894  the  opinions  were  much  divided  ;  but  in  1900  the  idea 
was  adopted  which  the  majority  had  already  in  1894.  It  was 
demanded  that  both  the  national  and  the  domiciliary  state  must 
recognize  the  institution  of  divorce,  and  that  also  the  grounds  of 
divorce  must  exist  according  to  both  systems  of  law.  The  same 
principle  was  adopted  as  to  the  "  separation  de  corps."  The 
authoritative  rules  read  as  follows  (and  I  note  that  a  small  change 
was  made  in  the  first  paragraph  of  Art.  2  through  diplomatic 
negotiations)  : 

1  It  is  printed  in  my  publication,  "Geschichte  und  System  des  inter- 
nationalen  Privatrechts  im  Grundriss  ",  pp.  73-75.  It  has  been  published 
in  Spanish  by  Torres  Campos,  "Bases  de  una  Legislacidn  sobre  Extra- 
terri  tori  alidad."  Madrid,  1896,  pp.  188-190. 

484 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  5 

"Art.  1.  Les  epoux  ne  peuvent  former  une  demande  en  divorce 
que  si  leur  loi  nationale  et  la  loi  du  lieu  oil  la  demande  est  formee, 
admettent  le  divorce  l'un  et  l'autre. 

"  II  en  est  de  meme  de  la  separation  de  corps. 

"  Art.  2.  Le  divorce  ne  peut  etre  demande  que  si,  dans  le  cas  dont 
il  s'agit,  il  est  admis  a  la  fois  par  la  loi  nationale  des  epoux  et  par  la 
loi  du  lieu  ou  la  demande  est  formee,  encore  que  ce  soit  pour  des  causes 
differentes. 

"  II  en  est  de  meme  de  la  separation  de  corps." 

It  is  true  that  a  small  modification  of  the  principle  was  made, 
because  in  Italy  divorces  have  been  granted  to  aliens  where  their 
national  law  so  permits,  although  Italy  itself  did  not  recognize 
the  institute  of  divorce  at  the  time.  The  case  is  very  remarkable, 
but  the  matter  is  settled.  It  is  a  kind  of  discounting  of  the  divorce 
project  in  Italy.1 

I  cannot  say  that  the  provisions  of  Arts.  1  and  2  have  my  full 
sympathy ;  for  in  the  particular  case,  it  may  be  very  difficult  to 
prove  a  concordance  between  two  systems  of  law,  and  I  do  not 
consider  it  proper  to  try  to  solve  the  difficulties  in  international 
private  law  by  demanding  the  observance  of  two  laws  —  that  means 
simply  adding  to  the  difficulties  of  the  situation.  It  is  true, 
the  Third  Conference  tempered  the  principle  by  means  of  a 
rather  subtle  distinction.  An  accordance  of  the  two  laws  as  to  the 
ground  for  divorce  is  no  longer  required,  but  simply  that  one 
ground  shall  exist  by  the  "  lex  patriae  "  and  another  by  the  "  lex 
domicilii."  Each  ground  is  then  considered  internationally  as  a 
half-ground  ("  demie-cause  ")  and  two  half-grounds  make  one 
whole  ground.  It  is  that  which  has  been  expressed  still  more 
clearly  by  the  additional  clause  in  Art.  2,  "  encore  que  ce  soit  pour 
des  causes  differentes." 

2.  Special  difficulties  were  also  presented  in  the  variously  regu- 
lated jurisdiction  of  the  courts  2  to  deal  with  actions  for  divorce. 
According  to  the  English  and  American  view,  the  courts  of  the 
domicile  have  the  right  to  determine  actions  for  divorce.  From 
the  Continental  European  point  of  view  it  is  surprising  that  a 
married  woman  may  acquire  an  independent  domicile  so  as  to 
obtain  a  divorce  at  a  remote  place  after  a  short  sojourn.  The 
exceptional  peculiarities  contained  in  the  laws  of  South  Dakota  and 

1  Cf.  my  publication,  "Das  internationale  Privatrecht  und  die  Staaten- 
konferenzen  im  Haag",  pp.  51-53. 

2  The  details  are  given  in  my  "  Internationales  Zivilprozessrecht  ", 
pp.  223  et  seq. 

485 


§  5]  PART   III      UNIFICATION    OF   LAW  [Chap.    XIII 

Oklahoma  Territory  have  made  these  places  known  also  in  Europe 
as  divorce  factories.1 

Other  countries  accord  only  the  national  courts  jurisdiction  to 
grant  divorces  to  their  own  subjects,  while  others  recognize  the 
home  forum  only  as  an  exception. 

The  convention  did  not  found  or  create  any  forum,  but  made  the 
jurisdiction  of  the  court  dependent  upon  the  particular  system  of 
law.     Especially  important  are  Arts.  5  and  7.     I  will  quote  Art.  5 : 

"Art.  5.  La  demande  en  divorce  ou  en  separation  de  corps  peut 
etre  f  ormee : 

"1.  Devant  la  juridiction  competente  d'apres  la  loi  nationale  des 
epoux. 

"2.  Devant  la  juridiction  competente  du  lieu  ou  les  epoux  sont 
domicilies.  Si,  d'apres  leur  legislation  nationale,  les  epoux  n'ont 
pas  le  meme  domicile,  la  juridiction  competente  est  celle  du  domicile 
du  defendeur.  Dans  le  cas  d'abandon  et  dans  le  cas  d'un  change- 
ment  de  domicile  opere  apres  que  la  cause  de  divorce  ou  de  separa- 
tion est  intervenue,  la  demande  peut  aussi  etre  formee  devant  la 
juridiction  competente  du  dernier  domicile  commun.  Toutefois,  la 
juridiction  nationale  est  reservee  dans  la  mesure  ou  cette  juridiction 
est  seule  competente  pour  la  demande  en  divorce  ou  en  separation  de 
corps.  La  juridiction  etrangere  reste  competente  pour  un  mariage 
qui  ne  peut  donner  lieu  a  une  demande  en  divorce  ou  en  separation 
de  corps  devant  la  juridiction  nationale  competente." 

§  6.  Same  :  3.  The  Treaty  upon  the  Guardianship  of  Minors, 
and  the  Draft  Convention  upon  Interdiction.  —  (1)  Both  conven- 
tions are  based  upon  the  same  principle :  The  "  lex  patriae  "  was 
here  again  the  victor.  Art.  1  of  the  "  Convention  pour  regler  la 
tutelle  des  mineurs  "  reads  as  follows : 

"La  tutelle  d'un  mineur  est  reglee  par  sa  loi  nationale." 

And  Art.  1  of  the  "  Projet  d'une  Convention  concernant  1'in- 
terdiction  et  les  mesures  de  protections  analogues  "  provides: 

"  L'interdiction  est  reglee  par  la  loi  nationale  de  la  personne  a 
interdire,  sauf  les  derogations  a  cette  regie  contenues  dans  les  articles 
suivants." 

(2)  If  the  national  state  does  not  institute  a  guardianship  over 
minors,  the  local  officials  may  do  so,  but  they  are  here  again 
restricted  to  the  grounds  recognized  by  the  national  state. 

1  See  "Zeitschrift  fur  internationales  Privat-  und  Strafreeht ",  IV, 
pp.  404-407. 

486 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  7 

In  regard  to  interdiction  (of  persons  physically  weak  or  insane, 
spendthrifts)  Art.  7  demands  that  in  the  event  of  officials  of  the 
place  of  sojourn  instituting  the  proceeding,  the  law  of  that  place 
and  of  the  national  state  must  permit  of  it.  Scientifically,  the 
cumulation  of  two  systems  of  law  is  objectionable  —  I  do  not  find 
it  a  nice  solution. 

(3)  Interdiction  produces  an  effect  everywhere  so  far  as  the 
capacity  of  the  interdicted  person  to  act  is  in  question.  Still, 
the  state  of  sojourn  may  provide  that  the  proceeding  instituted 
by  the  foreign  state  must  first  be  made  publicly  known  there 
before  such  effect  be  given  it.  The  limitation  upon  the  capacity 
to  act  will  then  date  only  from  that  time  forth  as  against  innocent 
third  parties. 

Art.  9  is  not  intended  to  mean  that  every  interdiction,  e.g.,  also 
that  based  upon  a  declaration  of  weakness  of  mind  must  be  recog- 
nized everywhere.  According  to  the  "  Actes  de  la  IV  Conference  ", 
the  question  of  personal  freedom  remains  untouched  —  in  the 
discussion  my  colleague  Roguin  clearly  explained  this  question, 
upon  which  we  lay  great  stress  in  Switzerland,  and  all  the  delegates 
were  entirely  agreed  in  relation  to  it. 

§  7.  Same :  4.  The  Treaty  upon  Succession.  —  The  draft 
elaborated  in  1904  differs  materially  from  the  earlier  drafts.  It 
may  be  said  to  rest  upon  four  principles : 

(1)  It  enacts  the  unity  or  universality  of  the  estate;  so  that 
immovables  may  not  be  subjected  to  the  law  of  succession  in  force 
at  the  place  of  their  situation. 

In  Continental  Europe,  this  rule  is  regarded  as  very  important, 
although  France,  Belgium,  Netherlands,  Hungary,  and  Russia  sup- 
port a  different  system.  The  scientific  writers  of  all  these  states, 
however,  recognize  that  the  condition  of  the  law  requires  reform. 
The  estate  should  not  be  cut  up  and  subjected  to  various  systems 
of  law. 

(2)  The  estate  is  subjected  to  national  law  in  regard  to  the  trans- 
fer to  the  heirs,  the  rank  of  the  heirs,  their  quota,  representation, 
deduction  for  advances,  and  the  peremptory  quota. 

Norway,  Denmark,  and  Switzerland  have  up  till  now  supported 
the  principle  of  the  domicile.  As  representative  of  Switzerland,  I 
attempted  a  compromise  upon  the  basis  of  the  existing  laws.  Art. 
22  of  the  federal  statute  upon  the  legal  relationships  of  persons 
domiciled  and  sojourning,  provides  : 

"Succession  is  governed  according  to  the  law  of  the  last  domicile 
of  the  deceased. 

487 


§  7]  PART  III      UNIFICATION   OF  LAW  [Chap.   XIII 

"A  person  may,  however,  subject  the  succession  to  his  estate  to 
the  law  of  his  home  country  by  testamentary  disposition  or  contract 
for  succession." 

This  rule  applies  also  to  aliens  residing  in  Switzerland  (Art.  32). 

I  stated  to  the  Conference  (cf.,  e.g.,  "  Actes  de  la  troisieme 
Conference  ",  pp.  85-87)  that  there  should  also  be  a  means  of 
reconciling  the  domiciliary  with  the  national  law  in  matters  of 
succession.  I  therefore  proposed,  among  other  things,  to  let  the 
"  lex  patriae  "  govern,  but  to  give  the  testator  the  right,  by  a  formal 
act,  to  designate  the  domiciliary  law.  I  thus  reversed  the  Swiss 
provision.  I  pointed  out  that  many  individuals  in  modern  times 
are  intimately  connected  with  the  domiciliary  state,  and  therefore 
it  is  improper  to  restrict  them  to  the  law  of  succession  of  the  na- 
tional state,  to  which  they  are  bound  by  weak  ties  only. 

But  the  majority  continued  to  hold  the  view  that  the  national 
law  must  alone  be  authoritative. 

(3)  Aliens  are  upon  equal  footing  with  natives,  in  matters  of 
succession. 

This  had  to  be  stated  particularly,  because  some  countries  of 
Europe  still  give  prior  rights  to  native  subjects  over  pieces  of 
property  situated  in  the  local  territory. 

This  rule  is  based  upon  the  French  law  of  1819.1 

(4)  The  attempt  is  made  to  specify  the  so-called  imperative  or 
prohibitive  rules  by  means  of  declarations  to  be  given  by  the 
governments  of  the  participating  nations  within  a  certain  time 
(Art.  6) .    This  matter  will  be  treated  further  at  the  next  Conference. 

The  difficult  question  of  jurisdiction  in  disputes  over  successions 
will  be  also  discussed  at  the  next  Conference.2 

§  8.  C.  International  Law  of  Bankruptcy.  —  The  international 
conferences  dealt  here  with  a  subject  basically  differing  from  the 
others.  Whereas,  international  private  law  deals  with  the  question 
whether  local  or  foreign  private  law  is  applicable  to  a  particular 
legal  relationship,  or  whether  in  instituting  a  guardianship,  State 
A  is  entitled  to  place  an  individual  of  State  B  under  the  machinery 
of  guardianship,  international  bankruptcy  law  has  for  its  object 
the  determination  as  to  whether  a  local  bankruptcy  of  its  own 
force  affects  assets  situated  abroad,  and  whether  a  foreign  bank- 
ruptcy affects  assets  in  the  local  state  ;  so  also  as  to  what  influence 

1  Cf.  my  work,  "Internationales  Civil- und  Handelsrecht ",  II,  p.  133; 
Kuhn's  translation,  §  136,  II,  2. 

*  Germany  elaborated  a  draft  relating  to  the  jurisdiction  of  the  courts, 
which  is  printed  in  my  "Internationales  Zivilprozessreeht  ",  pp.  256  et  seq, 

488 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  8 

bankruptcy  has  upon  the  legal  position  of  the  bankrupt  inter- 
nationally and  as  to  how  the  various  proceedings  such  as  certificates 
of  incomplete  payment,  compromise  agreements,  or  discharges  are 
to  be  interpreted  internationally  (a  question  which  may  also  arise 
intercolonially).  Thus  it  will  become  important  to  determine 
how  far  a  question  is  one  of  the  internal  law  of  execution  (procedure) 
and  how  far  one  of  foreign  substantive  law,  and  to  what  extent  each 
shall  be  applied.  Of  course,  in  international  bankruptcy  law,  the 
entire  subject  of  international  private  law  may  come  into  point.1 

The  subject  was  taken  up  at  the  Second  Conference  (1894)  but 
the  project  then  elaborated  designated  itself  only  as  a  preliminary 
work  ("  Actes  de  la  deuxieme  Conference",  1894,  pp.  59-62). 
At  the  Third  Conference,  the  subject  was  again  dealt  with,  but  no 
draft  resulted  ("Actes  de  la  troisieme  Conference",  pp.  147-151). 

Since  some  considerable  time,  the  idea  thrown  out  by  Savigny 
("  System  des  romischen  Rechts  ",  VIII,  p.  283)  has  been  widely 
followed,  particularly  by  Italian  jurists,  to  the  effect  that  a  bank- 
ruptcy is  possible  only  at  one  place ;  they  put  the  conception  of 
the  "pluralite"  or  "  territorialite  de  la  faillite"  over  against  that 
of  "  unite."  2  This  principle  was  supported  also  by  an  inter- 
national congress  held  at  Turin,  which  formulated  detailed  con- 
clusions.3 

The  same  tendency  was  evidenced  also  by  the  Institut  de  droit 
international.4  It  formulated  in  Paris,  in  1894,  "  Regles',generales 
sur  les  rapports  internationaux  en  matiere  de  faillite  "  ("  Annuaire  ", 
XIII,  1894-95,  pp.  279-281)  and  Roguin  worked  out  proposals  for 
the  meeting  at  Brussels  ("Annuaire",  XIX,  1902,  p.  115;  discus- 
sion at  pp.  232  et  seq.).  The  Institute  concluded  to  rest  upon  the 
results  of  the  discussion  —  certain  questions  were  not  determined, 
but  were  left  in  suspense  for  regulation  later.  (Art.  4  of  Roguin 's 
proposal ;  the  equalizing  of  the  non-merchant  with  the  merchant ; 
the  position  of  minors,  interdicted  persons,  etc. ;  also  the  question 
of  mortgages  and  priorities.) 

1  This  remark  has  already  been  made  by  Lyon-Caen  and  Renault, 
"Traite  de  droit  commercial  ",  VIII,  3d  edition,  No.  1225. 

2  Cf.,  e.g.,  Gemma,  "II  fallimento  nei  rapporti  internazionali ",  1897, 
p.  12.  The  whole  tendency  is  reflected  in  the  publication  of  Carle  entitled, 
"  La  dottrina  giuridica  del  fallimento  nel  diritto  privato  internazionale", 
1872. 

3  Cf.  my  "Geschichte  und  System  des  internationalen  Privatrechts  im 
Grundriss",  pp.  176-177. 

4  Kohler  very  unfavorably  criticizes  the  resolutions  of  the  Institut  de 
droit.  (" Civiiistisches  Archiv,"  96,  pp.  348-349.)  He  says  they  are 
far  from  grasping  the  difficulties  of  the  question,  and  that  their  delibera- 
tions cannot  be  regarded  as  assisting  matters. 

489 


§  8]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

The  draft  treaty  of  Montevideo  (1889)  also  treated  of  bank- 
ruptcy, but  without  establishing  the  rule  of  universality.  The 
provisions  are  printed  in  the  papers  of  the  International  American 
Conference  and  are  entitled,  "  Reports  of  Committees  and  Dis- 
cussions thereon  ",  Vol.  II,  pp.  900-902.1 

The  idea  of  the  universality  of  bankruptcy  is  at  first  sight  most 
captivating.  It  expresses  the  view  that  bankruptcy  proceedings 
have  extraterritorial  effect,  that  they  affect  all  the  assets  of  the 
bankrupt  wherever  found,  and  that  the  administrator  in  bank- 
ruptcy at  the  place  of  bankruptcy  may  distribute  equitably  for  all 
creditors.  But  as  soon  as  the  question  is  approached  practically, 
it  becomes  clear  that  Wharton  ("  Conflict  of  Laws  ",  §  807)  not 
unjustly  speaks  of  the  "  romantic  cosmopolitan  efficacy  "  of  the 
bankruptcy  decree.2  To  effectuate  the  bankruptcy  upon  assets 
throughout  the  world  is  a  matter  of  extraordinary  difficulty : 

1.  Because  of  the  diffusion  of  the  various  parts  of  the  estate. 

2.  Because  of  the  prosecution  of  claims  at  one  place  —  the  lin- 
guistic difficulties  may  here  be  referred  to. 

3.  Circumstances  may  arise  which  may  have  to  do  with  the 
credibility  of  foreign  officials,  the  firmness  of  foreign  courts  in 
dealing  with  doubtful  bankruptcies,  and  in  seeing  that  all  creditors 
are  treated  alike.  In  a  word,  it  is  a  question  of  the  most  intense 
mutual  confidence. 

Under  these  circumstances  The  Hague  Conferences  did  not 
attempt  to  elaborate  a  draft  treaty  intended  to  be  binding  upon  all 
the  participating  nations.  The  Conference  of  1904  satisfied  itself 
by  working  out  a  model  treaty  for  such  nations  as  may  desire  to 
enter  into  treaty  relations  upon  bankruptcy  with  each  other,  per- 
mitting each  state  to  determine  whether  or  not  it  will  conclude  a 
treaty  wTith  any  other.3 

Some  few  such  treaties  have  been  concluded  in  modern  times, 
sanctioning,  upon  this  modest  basis  and  between  the  states  con- 
cluding them,  the  universality  of  bankruptcy  proceedings.  In 
this  connection,  reference  is  to  be  made  to  the  following  treaties : 

1  The  provisions  are  also  to  be  found  in  my  "  Kodification  des  inter- 
nationalen  Zivil- und  Handelsreehts  ",  pp.  133-146,  and  in  "Zeitschrift  fin* 
internationales  Privat-  und  Strafreeht",  I,  480-482  (Heck). 

2  Cf.  also  Kleinfeller,  "  Die  Universitat  der  Wirkungen  des  Konkurs- 
eroffnungsbeschlusses  ",  in  "Zeitschrift  fur  internationales  Privat-  und 
offentliches  Reeht ",  XIII,  pp.  549-574. 

3  There  are  also  treaties  dealing  with  bankruptcy  law  among  other 
topics,  as  for  instance,  certain  treaties  concluded  by  the  German  Empire 
(cf.  Bohne,  "Die  raumliche  Herrschaft  der  Rechtsnormen  ",  1890,  pp.  212- 
214).  The  settlement  and  consular  treaty  of  Italy  with  Switzerland  of 
1868  also  contains  one  provision  of  bankruptcy  law  (Art.  8). 

490 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  9 

1.  Between  France  and  Switzerland,  1869  (Arts.  6-9  of  the  treaty 
on  the  jurisdiction  of  the  courts  treats  of  the  law  of  bankruptcy). 

2.  Between  France  and  Belgium,  1899,  Art.  8. 

3.  Between  Wiirttemberg  and  Switzerland,  1826.  (The  treaties 
with  Bavaria  and  Saxony  do  not  go  so  far.) 

II.    The  Future  Possibilities  of  Accomplishment 

§  9.  The  Prospects  of  Anglo-American  Cooperation.  —  The 
question  may  be  asked  whether  other  nations  of  the  world,  partic- 
ularly England  and  America,  are  in  a  position  to  participate  in 
The  Hague  Conferences  in  the  future,  and  eventually  to  become 
parties  to  the  conventions  and  convention  drafts.  In  this  con- 
nection the  following  points  may  be  emphasized  : 

1.  An  affirmative  answer  may  be  given  in  regard  to  the  convention 
upon  the  International  Law  of  Procedure. 

Here  we  have  a  neutral  subject-matter  that  is,  notwithstanding, 
of  considerable  importance  to  the  accomplishment  of  justice.  It 
is  imperative  that  justice  shall  triumph  throughout  the  world,  and 
particularly  also  in  connection  with  processual  manoeuvres.  The 
nations  should  obligate  themselves  mutually  to  lend  a  helping 
hand  in  the  matter  of  citations,  the  summoning  of  witnesses,  the 
taking  of  expert  testimony,  the  forwarding  of  documents.  Further, 
they  should  undertake  to  open  the  courts  of  justice  to  aliens  as 
much  as  to  native  subjects,  without  imposing  security  and  to 
foreign  poor  persons  in  the  same  manner  as  the  native,  etc.  They 
will  thus  elevate  the  cause  of  justice  to  the  rank  of  humanitarian- 
ism  and  give  it  the  stamp  of  universality.  Only  in  this  way  can 
they  fully  accomplish  the  ideal  task  of  justice. 

But  even  exclusive  of  the  fact  that  this  union  places  inter- 
national justice  upon  the  only  proper  basis,  a  much  fairer  judg- 
ment of  the  institutions  of  the  various  nations  is  arrived  at  by  the 
contact  of  their  legal  systems.  It  is  similar  to  the  process  which 
the  individual  undergoes  in  studying  the  language  and  literature 
of  another  people ;  it  may  be  taken  as  certain,  that  every  one 
understanding  the  language  of  a  foreign  people  will  more  justly 
appreciate  their  institutions.  Furthermore,  the  several  nations 
are  but  a  part  of  a  greater  whole,  and  we  should  be  solicitous  of  the 
welfare  of  the  whole  also  in  the  law. 

2.  Much  more  difficult  is  it  to  judge  the  situation  in  regard  to  the 
questions  of  International  Private  Law,  embracing  the  convention  now 
ratified  by  seven  nations  and  the  projected  conventions. 

491 


§  9]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

Iii  this  connection  it  is  necessary  to  make  some  general  remarks. 
The  theories  and  rules  of  law  in  force  throughout  the  world 
upon  international  private  law  may  be  divided  into  three  main 
groups : 

a.  There  is  a  group  of  states  supporting  the  rule  that  their 
subjects  may  rely  upon  their  national  law  in  private  matters  even 
though  abroad,  especially  in  regard  to  the  law  of  persons,  the 
family,  and  succession,  and  that  aliens  may  do  the  same  in  the  local 
state.  This  practice  is  followed  by  nearly  the  whole  of  Europe 
with  the  exception  of  England,  Denmark,  Norway,  and  Switzer- 
land. 

b.  There  is  a  group  of  states  in  which  the  law  of  the  momentary 
domicile  controls.  This  is,  according  to  Wharton,  the  law  of  the 
United  States  of  America  and  also  the  law  of  the  Province  of  Quebec, 
by  virtue  of  a  number  of  provisions  of  the  Civil  Code  of  Lower 
Canada,  e.g.,  Arts.  6,  7,  8,  135,  599,  600,  776  ;x  this  is  also  the  law 
of  Argentine  and  of  the  treaty  of  Montevideo. 

Wharton,  in  his  "Conflict  of  Laws",  §  8,  calls  nationality  an 
"  unfair  standard  of  personal  law." 

c.  Another  group  of  states  looks  solely  to  the  law  of  the  place 
where  the  parties  are  located.  This  is  the  English  view.  The 
American  jurist  David  Dudley  Field,  in  his  "  Draft  Outlines  of  an 
International  Code  "  (under  title  of  personal  capacity)  lays  down 
the  following  principle  (Art.  542). 

The  civil  capacities  and  incapacities  of  an  individual  in  reference 
to  a  transaction  with  living  persons,  except  so  far  as  it  affects  im- 
movable property  .  .  .  are  governed  by  the  law  of  the  place  where 
the  transaction  is  had,  whatever  may  be  his  national  character  or 
domicile  or  the  place  of  his  birth. 

And  Field  easily  deluded  himself  with  the  idea  that  Europe  was 
also  tending  in  this  direction,  for  he  says  :  "  It  is  not  the  rule  now 
recognized  by  European  international  law,  although  the  tendency  of 
opinion  is  in  this  direction." 

A  kind  of  juristic  dogma  has  existed  upon  the  Continent  of 
Europe  for  several  decades,  referable  to  the  new  Italian  school 
founded  by  Mancini,  an  Italian  jurist  and  statesman,  to  the  effect 
that  the  national  law  and  statute  represent  the  authoritative  and 
only  standard  in  international  matters.  Sir  Walter  Phillimore, 
in  his  address  before  the  International  Law  Association  at  Glasgow, 

1  Cf.  E.  Lafleur,  "The  Conflict  of  Laws  in  the  Province  of  Quebec" 
(Montreal,  1898). 

492 


Chap.  XIII]  CONFLICT  OF  LAWS  [§  9 

1901,  spoke  of  the  "  more  modern  school  of  French  jurists."  l 
This  is  an  error.  The  doctrine  is  traceable  to  Italy,  and  hence  we 
may  speak  of  the  new  Italian  school.2  It  arises  partly  from  politi- 
cal considerations  in  that  it  is  believed  that  the  development  of  a 
people  into  a  unified  nation  necessarily  requires  that  its  subjects 
be  respected,  as  such,  also  abroad  and  be  considered  as  subject  to 
national  law  in  matter  of  civil  law.  But  this  is  also  an  error.  I 
recognize  thoroughly  that  the  "  lex  patriae  "  should  give  the  stand- 
ard in  many  branches  of  international  private  law,  but  I  deny  that 
this  principle  can  claim  absolute  control ;  it  did  not  stand  the  test 
of  practical  life  in  which  I  was  long  active.  I  was  never  tired  of 
pointing  out  that  a  reconciliation  should  be  accomplished  between 
the  two  main  principles,  and  I  have  stated  that  the  task  of  juris- 
prudence should  be  scientifically  as  follows  : 3 

"We  should  demarcate  those  elements,  on  the  one  hand,  which 
permit  the  lawmaker  to  give  effect  to  the  law  of  the  domicile  or  sojourn, 
and  on  the  other  hand,  those  which  influence  him  to  promote  and 
effectuate  the  continuance  of  that  public  bond  which  connects  the 
individual  with  his  native  (home)  state." 

I  have  also  continually  supported  this  idea  of  reconciliation 
at  the  Conferences  ("Actes",  1893,  p.  69;  "Actes",  1894,  p.  37; 
"Actes",  1900,  pp.  85-87).  And  again,  in  1904,  I  referred  to  the 
necessity  of  sanctioning  a  "  sententia  media  "  —  I  was  supported 
in  this  by  my  colleague,  Roguin,  with  a  proposal  relating  to  suc- 
cession, although  indeed  I  had  certain  doubts  as  to  its  practicabil- 
ity.    A  reconciliation  might  be  accomplished  : 

1.  By  setting  a  period  of  time  after  which  aliens  domiciled  in  the 
local  state  shall  be  subject  to  local  private  law  —  say  a  period  of 
five  or  ten  years.  We  would  not  by  this  force  aliens  to  surrender 
their  foreign  nationality. 

1  Cf.  "Report  of  the  Twentieth  Conference",  p.  230,  where  W.  Phil- 
limore  says,  "The  more  modern  school  of  French  jurists  would,  if  I  under- 
stand them  aright,  reject  the  lex  domicilii  and  substitute  for  it  the  national 
law." 

2  Cf.  my  handbook,  "  Internationales  Civil-  und  Handelsrecht  ",  I, 
pp.  120  et  seq.;  Kukri's  translation,  §§  35  et  seq.  The  first  Italian  school 
may  be  associated  with  the  name  of  Bartolus. 

3  I  made  this  proposal  in  my  pamphlet  (out  of  print)  :  "  Der  erste  euro- 
paische  Staatenkongress  iiber  internationales  Privatrecht"  (1894),  p.  10; 
in  my  address,  "Der  internationale  Geist  in  der  Jurisprudenz "  (Zurich, 
1897),  p.  27  ;  in  my  article,  "Das  Problem  des  internationalen  Privatrechts," 
in  "  Oesterreichisches  Centralblatt  fiir  die  juristische  Praxis",  V,  pp.  193- 
222  ;  in  my  article  :  "Ueber  das  historische  Debut  der  Doktrin  des  inter- 
nationalen Privat-  und  Strafrechts  "  ( Leipzig,  1899),  p.  12,  and  in  my  hand- 
book, "  Internationales  Civil-  und  Handelsrecht",  I,  pp.  164-167,  Knhn's 
translation,  §  45. 

493 


§  9]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

2.  By  respecting  partly  the  national  law  and  partly  the  domi- 
ciliary law.     This  middle  way  would  be  possible  : 

a.  In  the  law  of  persons  as  to  the  status. 

b.  In  family  law  in  regard  to  : 
a.  Matrimonial  property. 

/3.  Divorce. 

7.  Guardianship. 

3.  By  making  children  of  aliens  born  in  the  local  state  subjects 
of  that  state. 

These  ideas,  I  believe,  would  find  favor  more  easily  with  the 
Anglo-American  legal  world  than  with  the  jurists  of  the  European 
Continent.  And  perhaps  I  would  have  had  a  greater  chance  of 
success  if  England  and  America  had  participated  in  the  Confer- 
ence —  at  any  rate,  I  always  regretted  that  these  nations  were 
missing  at  The  Hague.1  An  unlimited  emphasis  of  the  importance 
of  the  "  lex  patriae  "  is  injurious  to  the  unity  of  private  law ;  for 
this  is  destroyed  when  aliens  can  claim  the  application  of  their 
national  law  in  the  local  state.  Particularly  unfortunate  would 
be  the  situation,  where  (as  in  America  and  Switzerland)  many 
foreigners  reside.  On  the  other  hand,  it  is  difficult  to  fight  against 
articles  of  faith  in  jurisprudence,  for  that  is  really  what  we  have 
in  the  "  lex  patriae  "  principle.  Small  states,  like  Switzerland, 
are  in  an  especially  unfortunate  situation,  for  they  must  follow 
the  weight  of  authority  of  theory  and  practice  even  though  little 
convinced  of  its  correctness. 

I  am,  on  the  other  hand,  glad  to  see  that  the  unlimited  control 
of  territoriality  (English  conception)  and  of  the  "  lex  domicilii  " 
(American  conception  :  Wharton)  is  being  shaken.  In  the  address 
of  Sir  Walter  Phillimore  before  the  International  Law  Association 
at  Glasgow  ("  Report  of  the  Twentieth  Conference  ",  p.  230)  he 
makes  the  following  noteworthy  remarks  in  mentioning  the  new 
school  for  the  application  of  national  law :  "I  have  a  great  sym- 
pathy with  this  school,  and  I  see  much  that  would  be  gained  in 
simplicity  and  certainty  by  substituting  in  all  questions  of  personal 
status  the  national  law  for  the  law  of  the  domicile."     These  words 

1  I  stated  my  regret  at  the  absence  of  the  Anglo-American  race  already 
in  my  pamphlet,  "Der  erste  europaische  Staatenkongress  iiber  das  inter- 
nationale  Privatrecht ",  Vienna,  1894,  pp.  13-14.  In  my  handbook,  I, 
p.  23  (Kukri' s  translation  "International  Civil  and  Commercial  Law*', 
§  5,  II,  6),  I  pointed  out  that  representatives  from  England  and  America 
would  have  counteracted  the  exaggerated  importance  given  to  the  "lex 
patriae."  So,  also,  in  my  "Internationales  Civilprozessrecht ",  p.  26. 
Simeon  E.  Baldwin  is  of  a  contrary  opinion.  Cf.  "Harvard  Law  Review", 
XVII,  p.  402,  and  "Columbia  Law  Review",  IV,  p.  307. 

494 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  9 

represent  the  strongest  criticism  of  the  comments  of  the  most 
reputed  English  and  American  authors  (Westlake,  Wharton,  Story, 
Field).  //  these  words  would  gradually  gain  favor  in  English  and 
American  legal  circles,  there  would  be  hope  for  the  reconciliation  of  the 
two  main  principles,  as  proposed  by  me,  and  it  would  then  be  possible 
to  accomplish  uniform  rules  of  conflict  between  the  Old  and  the  New 
World,  by  concessions  made  on  both  sides. 

But,  in  the  meantime,  I  seriously  doubt  whether  the  time  has 
yet  arrived  for  England  and  America  to  become  parties  to  the 
conventions.1  The  divergencies  in  the  theories  upon  the  international 
private  law  are  —  even  exclusive  of  the  personal  statute  —  very  con- 
siderable. I  will  here  merely  recall  the  fact  that  according  to  one 
of  the  leading  tendencies  in  English  and  American  law,  immovables 
are  governed  by  the  law  of  their  situation.2  This  is  true  in  regard 
to: 

(a)  The  capacity  to  act. 

(6)  The  form  of  legal  transactions. 

(c)  The  law  of  succession. 

Now,  it  must  be  said  that,  particularly  in  North  America,  there 
is  no  adequate  legal  ground  for  the  control  of  the  locus  of  the  prop- 
erty in  regard  to  immovables  when  not  concerning  the  determina- 
tion of  real  rights;  for  feudalism, so  far  as  I  know, was  never  intro- 
duced in  America  as  it  existed  in  Europe.  The  theory  that  wher- 
ever immovables  are  in  question  (in  the  law  of  persons,  obligations, 
succession),  the  law  of  the  situation  of  the  property  must  govern 
was  brought  over  from  England  essentially  as  a  kind  of  colonial 
freight,  and  England  took  the  rule  from  the  Netherlands  —  even 
rules  of  law  may  be  traced  to  race  wanderings.  But  even  without 
considering  feudalism  and  the  journey  that  the  theory  made, 
it  is  urgently  to  be  desired  that  England  and  America  relin- 
quish the  unlimited  reference  of  immovables  to  the  place  of 
situation ;  the  rule  is  to  be  confined  to  real  rights.  It  should 
especially  not  be  applied  in  the  law  of  succession,  because  the 
estate  as  a  unity  can  and  should  be  subjected  to  only  one  system 
of  law. 

Still,  it  would  be  mistaking  the  tempo  of  history  to  demand  of  the 
Anglo-American  sphere  of  jurisprudence  to  alter,  as  it  were,  from  one 
day  to  the  other,  conceptions  to  which  the  people  have  become  attached. 

1  A  different  question  is  whether  these  nations  should  not  be  represented 
at  the  conferences  "ad  audiendum  et  referendum." 

2  Story,  "Conflict  of  Laws",  §  424;  Field,  "Code",  Art.  586;  Kent, 
"Commentaries",  12th  ed.  by  Holmes,  p.  429;  Wharton,  "Conflict  of 
Laws",  §  560. 

495 


§  9]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

For  this  is  required  a  longer  time,  more  detailed  study,  comparative 
research,  and  the  enlightenment  of  younger  generations.1 

It  is  also  true  that  there  are  European  nations  whose  systems 
of  law  still  support  the  doctrines  of  the  "  lex  rei  sitae  "  in  regard  to 
immovables,  e.g.,  France,  Austria,  Russia.  But  in  the  first  two 
countries,  at  least,  the  soundness  of  the  theory  has  been  entirely 
destroyed,  and  there  is  no  longer  any  faith  in  it.  Even  in  Russia, 
the  celebrated  jurist  v.  Martens  is  against  it  "en  pure  theorie."  2 
In  England  and  America,  however,  it  is  an  article  of  legal  faith,  and 
we  all  know  how  difficult  it  is  to  reform  it ;  this  particularly  so  of  a 
people  who  are  very  conservative  in  legal  matters.3  No  author  has 
opposed  the  controlling  view  in  these  countries. 

The  Hague  conventions  were  the  subject  of  a  general  discussion 
before  the  International  Law  Association  in  Antwerp,  1903.  Sir 
Walter  Phillimore  made  an  address  also  here  and  discussed  "  the 
advisability  of  the  British  Government  taking  part  in  the  legal 
conference  at  The  Hague  on  private  international  law  "  ("  Report 
of  Twenty-first  Conference",  1904,  p.  80).  Phillimore  here  re- 
gretted that  Great  Britain  has,  up  to  the  present,  not  participated 
in  The  Hague  Conference  (and  also  in  other  conferences  upoj 
maritime  law).  Sir  William  Kennedy  (Judge  of  the  High  Court  of 
Justice  in  London)  proposed  a  resolution  (p.  85)  which  was  accepted 
(p.  93): 

"That  this  Conference,  considering  the  great  importance  of  the 
co-operation  of  the  Government  of  Great  Britain  in  relation  to  Inter- 
national Conventions  for  such  purposes  as  are  set  forth  in  Sir  Walter 
Phillimore's  paper,  resolves  that  it  is  desirable  that  the  Executive 
Council  of  this  Association  should  take  steps  respectfully  to  lay  before 

1  There  is  perhaps  one  of  the  Hague  treaties,  namely  that  upon  entrance 
into  marriage,  which  might  be  acceptable  to  England  and  America,  for 
the  very  reason  that  in  Art.  1  other  systems,  besides  the  national  law, 
are  reserved  for  application.  Reference  may  here  again  be  made  to  a  re- 
cent discussion  by  Sir  Walter  Phillimore  ("  Report  of  Twentieth  Conference 
of  the  International  Law  Association",  1901,  pp.  288  et  seq.).  This  jurist 
favors  even  extending  the  conditions  for  a  valid  marriage,  for  he  proposes 
the  following  (238) : 

"The  essentials  of  marriage  should  be  regulated  by  the  personal  law  and 
by  the  lex  loci;  both  should  be  complied  with." 

In  my  opinion,  this  cumulation  again  goes  too  far,  but  it  shows  plainly 
how  Phillimore  has  relinquished  the  belief  in  salvation  solely  through 
the  "lex  domicilii"  ! 

2  Martens-Leo,  "Droit  international",  II,  p.  455. 

3  This  is  shown  also  as  to  the  limitation  of  actions.  Wharton,  §  545, 
points  out  that  European  jurists  are  opposed  to  determining  limitations  by 
the  "lex  fori"  ;  the  reasons  he  gives  are  sound,  but  he  holds  to  the  practice. 
Why?  "The  rule  is  now  too  firmly  settled  to  be  shaken."  Cf.  my  hand- 
book, I,  p.  210  :   A.  K.  Kuhn's  translation,  §  56. 

496 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  10 

the  British  Government  the  points  dealt  with  in  that  paper,  together 
with  this  resolution,  and  to  obtain  permission  for  the  audience  of  a 
deputation  for  the  purpose." 

But  even  though,  in  my  opinion,  the  time  is  not  yet  ripe  for 
England  and  America  to  become  parties  to  all  The  Hague  con- 
ventions, the  time  may,  nevertheless,  become  ripe.  This  is  the 
hope  I  wish  to  express  here,  and  this  leads  me  to  a  brief  recapitula- 
tion of  my  ideas. 

§  10.  Resume.  —  The  significance  and  scope  of  the  Conferences 
which  have  taken  place  at  The  Hague  so  far  as  concerns  other 
nations  may  be  recapitulated  as  follows  : 

I.  It  has  been  proved  in  Europe  that  the  gradual  elaboration  of 
rules  upon  the  private  conflicts  of  law.  or  if  one  prefers,  a  code  of 
international  private  law,  by  means  of  treaties,1  is  not  an  illusion. 

Speaking  generally,  this  result  of  The  Hague  Conferences  is  of 
the  highest  importance,  for  it  furnishes  a  noteworthy  contrast  to 
the  treaty  drafts  elaborated  by  the  South  and  Central  American 
states  at  Lima  in  1878  and  at  Montevideo  in  1889. 2 

II.  It  is  of  special  importance  to  note  that  the  only  proper 
procedure  was  adopted  at  The  Hague ;  the  details  of  the  questions 
must  be  approached ;  and  the  time  of  general  axioms,  the  signifi- 
cance of  which  was  for  so  many  centuries  held  in  the  foreground, 
has  passed  away. 

Further  endeavors  must  be  characterized  by  the  same  speciali- 
zation of  the  questions,  as  has  already  proved  so  practical. 

III.  After  four  conferences  held  at  The  Hague,  we  are  merely 
at  the  beginning  of  our  task.  It  is  particularly  necessary  to  cul- 
tivate the  study  of  international  private  law  in  all  countries  more 
thoroughly  and  in  detail  than  heretofore.  A  laudable  competition 
should  be  called  forth  among  the  jurists  of  the  whole  world.  Only 
thus  can  the  universal  uniformity  of  the  rules  of  conflict  be  kept 
seriously  in  mind.  This  international  "  tractandum  "  must,  of 
course,  be  approached  from  the  international  and  universalistic 
point  of  view  if  it  is  to  be  properly  accomplished. 

In  order  to  arrive  at  a  practical  result,  various  dangers  must  be 
avoided. 

1  Cf.  Fr.  Kahn,  "Die  einheitliche Kodifikation des internationalen  Privat- 
rechts  durch  Staatsvertrage  "  (Leipzig,  1904) ;  Contuzzi,  "Le  eonferenze  di 
diritto  internazionale  privato  all'  Aja"  (Napoli,  1904),  advances  some 
general  views  upon  the  duty  of  Europe  to  codify  international  private  law 
upon  the  basis  of  the  international  conferences  held  at  The  Hague  (pp.  312- 
320). 

2  I  have  had  these  treaty  drafts  reprinted  in  my  publication,  "Die 
Kodifikation  des  internationalen  Civil-  und  Handelsreehts  "  (Leipzig,  1891). 

497 


§  10]  PART   III      UNIFICATION    OF   LAW  [Chap.    XIII 

IV.  The  subject  must  be  approached  in  a  systematic  and  methodi- 
cal manner,  and  all  hurry  and  stress  should  be  carefully  avoided. 
There  is  plenty  of  time  at  the  disposal  of  the  world's  progress.1 
Of  course,  all  progress  demands  a  certain  trend  toward  ideal,2  but 
the  attempt  to  complete  a  great  plan  upon  the  spot  usually  meets 
with  doubtful  success,  although,  indeed,  the  Pan-American  Con- 
gress (held  in  Mexico,  1901-02),  concluded  that  a  code  of  interna- 
tional private  law  could  be  elaborated  in  the  shortest  time  by  a 
commission  of  five  American  and  two  European  jurists. 

We  may  here  recall  the  fact  that  two  historical  predecessors  <  f 
The  Hague  Conferences  remained  fruitless,  viz.,  the  efforts  of  the 
Netherlands  in  1874  to  call  a  conference  for  an  understanding  upon 
the  execution  of  foreign  civil  judgments,  and  the  efforts  of  Mancini 
in  1881.  From  this  it  is  not  difficult  to  deduce  that  all  new  struc- 
tures require  that  the  foundation  be  carefully  prepared,  and  this 
has  been  done  particularly  by  the  labors  of  the  Institut  de  droit 
international,  and  in  part  also  by  those  of  the  International  Law 
Association. 

V.  If  we  are  to  work  toward  accomplishing,  in  the  natural 
tempo  of  history,  universal  uniformity  in  the  rules  of  conflict,  it  is 
especially  necessary  that  all  nations  take  a  lively  interest  in  inter- 
national private  law ;  that  particularly  Anglo-American  juris- 
prudence shall  reform  its  views  on  certain  topics ;  that  England 
and  America  shall  carefully  study  and  test  the  questions  discussed 
at  The  Plague  Conferences,  in  order  to  determine  whether  they 
will  participate  in  them  in  future.3 

In  answering  this  question,  the  error  already  made  in  England 
should  not  be  repeated.  The  tendency  toward  establishing  cos- 
mopolitan rules  of  conflict  leaves  the  national  autonomy  of  each 
state  wholly  untouched  as  regards  its  substantive  private  law ;  in 
fact,  an  agreement  as  to  rules  of  conflict  presupposes  the  existence 

1  Brocher,  "Cours  de  droit  international  prive  suivant  les  principes 
consacres  par  le  droit  positif  francais  ",  II,  p.  428,  is  of  the  same  view 
when  he  states  :  "line  faut  pas  se  lejdissimuler :  les  antecedents  histori- 
ques  et  la  position  actuelle  de  certains  Etats  s'opposeront  longtemps  encore 
a  ce  que  l'unite  se  fasse  d'une  maniere  plus  ou  moins  absolute ;  c'est  un 
but  qu'il  faut  se  proposer  d'atteindre  sans  y  mettre  trop  d'impatienee." 

2  There  is  no  doubt  a  certain  international  trend  in  England,  in  more 
recent  times,  that  is  much  to  be  approved.  Thus,  G.  G.  PhilUmorc,  in  the 
"Journal  of  the  Society  of  Comparative  Legislation"  (1904),  expresses 
himself  in  favor  of  England  joining  the  international  union  relating  to  rail- 
road freight  law. 

3  I  refer  to  the  remarks  of  Simeon  E.  Baldwin  in  his  article,  "Recent 
Progress  towards  Agreement  on  Rides  to  Prevent  a  Conflict  of  Laws  ", 
in  "Harvard  Law  Review",  April,  1904,  p.  404  [and  the  same  author's 
Chapter  XIII  in  this  volume.  —  Ed.]. 

498 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  10 

of  divergent  systems  of  private  law.  When,  therefore,  in  1893, 
England  refused  to  participate  in  the  conferences  at  The  Hague 
because  of  the  peculiar  nature  of  English  private  law,  it  was,  in  my 
opinion,  the  result  of  an  error  as  to  the  task  and  purpose  of  those 
conferences.1 

This  conception  accords  also  with  the  reply  given  by  Lord 
Granville  in  1881  to  the  memorandum  of  the  Italian  minister, 
Mancini,  to  the  effect  that  an  understanding  might  be  arrived  at  in 
regard  to  the  following  subjects :  nationality,  mixed  marriages, 
domicile,  succession,  "  droit  d'aubaine  ",  and  the  execution  of 
foreign  judgments  ("  Journal  du  droit  ",  XIII,  1886). 

VI.  It  is  further  absolutely  necessary  that  international  private 
law,  as  an  independent  branch  of  law,  be  methodically  taught  and 
studied  in  all  countries,  at  least  at  the  great  universities.  In  other 
words,  independent  professorships  should  be  founded,  and  in  this 
regard  America,  with  its  munificent  patrons  of  universities,  can 
light  the  way  to  many  of  the  nations  of  Europe.2 

Of  course,  as  an  accompaniment,  comparative  jurisprudence  3 
should  also  receive  special  attention  at  the  universities. 

VII.  It  would  also  be  practical  to  establish  private  or  official 
commissions  in  the  principal  countries  for  the  special  purpose  of 
studying  the  subject  of  international  private  law,  and  make 
proposals  for  legislation  and  the  conclusion  of  treaties. 

This  practice  has  been  followed  in  France,  the  Netherlands, 
Belgium,  and  Russia,  these  states  being  thus  inspired  by  the  spirit 
of  The  Hague  Conferences. 

VIII.  It  is  also  imperative  that  officially  conducted  legal  bureaus 
be  created  in  every  country,  for  the  purpose  of  giving  correct 
information  to  foreign  courts  as  to  the  existing  private  law.  Parties, 
advocates,  and  judges  are  frequently  in  an  unfortunate  situation 
because  of  not  knowing  where  and  how  to  obtain  this  information 

1  The  statement  of  Councillor  Asser  at  the  First  Conference  (Septem- 
ber 12,  1893)  seems  to  me  to  be  sound  when  he  says  ("Actes  de  la  Confe- 
rence de  la  Haye,"  1893,  p.  26)  :  "Nous  respecterons  la  souverainete  et 
l'autonomie  des  Etats.  Nous  n'aspirons  pas  a  l'unification  generale  du 
droit  prive.  Au  contraire,  c'est  precisement  la  diversite  des  lois  nationales 
qui  fait  sentir  la  necessite  d'une  solution  uniforme  des  conflits  inter- 
nationaux. 

"Le  programme  de  cette  Conference  est  done,  en  lui  meme,  un  eclatant 
hommage  a  l'autonomie  nationale." 

2  I  have  often  referred  to  this  necessity  ;  I  did  this  as  early  as  1889,  in  my 
publication:  "Die  internationalen  Unionen  iiber  das  Recht  der  Welt- 
verkehrsanstalten  und  des  geistigen  Eigentums"  (Leipzig,  1889),  p.  77. 

3  I  may  here  refer  to  my  publication,  "  Institutionen  der  vergleichenden 
Rechtswissenschaft.  Ein  Grundriss"  (Stuttgart,  1898).  I  made  therein 
a  collection  of  materials. 

499 


§   10]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

—  this  applies  with  special  force  to  the  Anglo-American  sphere  of 
law.  In  saying  this,  I  nevertheless  recognize  that  the  American 
Academy  of  Political  and  Social  Science  has  done  good  service  in 
propagating  the  knowledge  of  foreign  laws. 

It  must  be  clear  to  us  all  that  by  virtue  of  the  facility  of  travel 
from  state  to  state,  and  from  one  part  of  the  world  to  the  other,  inter- 
national intercourse  is  making  continual  and  praiseworthy  progress. 
Both  jurisprudence  and  legislation  must  keep  on  a  parallel  with 
this  condition  of  things.  It  is  to  this  tendency  that  The  Hague 
Conferences  owe  their  existence.  The  Government  of  the  Nether- 
lands and  the  promoter  of  the  idea,  State-Councillor  Asser,  of  The 
Hague,  are  primarily  the  heralds  which  have  announced  the  legal 
demands  of  the  times.  And  if  the  nations  show  their  good  will,  the 
work  begun  at  The  Hague  may  easily  be  the  starting-point  of  an 
important  development  in  jurisprudence.  Nothing  is  so  clear  as  this, 
that  international  private  law  can  only  be  really  great,  significant, 
and  effective  if  the  rules  laid  down  are  recognized  in  equal  degree 
the  world  over. 


500 


Chap.  XIII] 


CONFLICT  OF   LAWS 


[I 


NTROD. 


Chapter  XIII  (continued) 

THE   HARMONIZATION  OF  THE   RULES  FOR  CONFLICT 

OF  LAWS 

PART  II.    A   COMPARISON 

OF  THE   EUROPEAN  AND   THE   LATIN-AMERICAN 

CONFERENCES  AND   THEIR  TENDENCIES 

By  Simeon  E.  Baldwin  1 


1.  Methods    of    Assimilation    of 

Private  International  Law. 

2.  The      Latin-American      Con- 

gresses. 

3.  The  Hague  Conferences. 

4.  The       Latin-American      and 


§5. 
§  6. 


the  European  Agreements 
Contrasted. 
The      Pan-American      Con- 


gresses. 
Operation    of 
Practice. 


the   Rules    in 


Public  international  law  has  been  sarcastically  defined  as  "  a 
compound  of  ethics,  etiquette,  and  fraud,  administered  by  armies 
and  navies."  If  in  England  and  the  United  States  it  has  ever  worn 
such  an  appearance,  this  belied  what  with  them  is  its  real  character. 
In  the  United  States,  so  far  as  criminal  proceedings  are  concerned, 
the  Constitution  gives  in  terms  to  Congress  the  power  to  define  and 
punish  offenses  against  the  law  of  nations,2  and  wherever  the  Anglo- 
American  common  law  extends  it  has  made  both  public  and  private 
international  law  a  part  of  itself,  to  be  administered  precisely  as 
municipal  law  is,  by  the  courts  whenever  a  question  turning  upon 
their  acknowledged  rules  may  come  up  for  judicial  determination.3 

But  what  are  these  acknowledged  rules  ?  To  too  large  an  extent 
they  are  what  the  judges,  who  may  be  trying  a  particular  case, 
choose  to  recognize  as  generally  established  and  resting  on  right 
reason.     This  is  in  accordance  with  the  genius  of  Anglo-American 

1  [Professor  of  Law  in  Yale  University ;  formerly  Chief  Justice  of  the 
Supreme  Court  of  Errors  of  Connecticut,  Governor  of  Connecticut,  Dele- 
gate of  the  United  States  to  the  Hague  Conferences,  etc.,  etc. 

The  present  Chapter  was  prepared  by  the  author  for  this  publication. 
—  Ed.] 

2  See  United  States  v.  Arjona,  120  U.  S.,  479,  488. 

3  Triquet  v.  Bath,  3  Burr.  1480;  In  re  Martin,  L.  R.  Appeal  Cases, 
1900,  Probate,  211 ;  West  Rand  Co.  v.  King,  L.  R.  2  K.  B.  391 ;  Moultrie 
v.  Hunt,  23  N.  Y.  394. 

501 


Introd.]  PART   III      UNIFICATION   OF   LAW  [Chap.    XIII 

law.  It  is  foreign  to  the  spirit  of  that  which  is  preferred  by  the 
civilized  world  in  general.  Most  nations  choose  to  express  their 
permanent  and  standing  laws  through  the  voice  of  their  legisla- 
tures. They  publish  them  in  the  form  of  codes,  supplemented 
perhaps  by  ministerial  ordinances.  A  natural  step  for  them  to 
take  next  is  to  publish  in  like  form  and  by  like  authority  such  rules 
of  public  and  private  international  law  as  they  may  deem  worthy 
of  recognition  and  enforcement.  But  here  the  "  like  authority  " 
is  not  the  legislative  or  executive  power  of  any  single  government. 
International  law  is  for  all  governments.  It  ought,  therefore,  to 
have  the  formal  approval  of  all.  Hence  any  official  codification 
will  naturally  take  the  form  first  of  a  treaty  or  convention  between 
several  nations,  owning  contiguous  territory,  or  connected  by 
common  interests.  Such  conventions,  when  ratified  by  the  law- 
making power  in  each,  will  be  the  act  of  that  power,  as  fully  as  if 
emanating  from  it  in  the  first  instance,  and  will  be  virtually  a  legis- 
lative code  for  each  and  all  of  the  different  signatories. 

Beginning  with  the  closing  years  of  the  nineteenth  century,  there 
have  been  four  marked  instances  of  codification  of  this  description. 
One,  in  the  field  of  public  international  law,  embodied  in  the  Con- 
ventions agreed  to  at  The  Hague  in  1899  and  1907,  is  familiar  td 
all.  Three  others  have  attracted  less  attention,  because  dealing 
wholly  or  mainly  with  matters  of  private  international  law.  Of 
these,  two  proceeded  from  Congresses  of  seven  South  American 
States  and  the  other  from  a  Conference  of  twice  that  number  of 
European  powers. 

§  1.  Method  of  Assimilation  of  Private  International  Law.  — 
No  field  of  political  science  is  explored  with  more  difficulty  than 
that  which  belongs  to  private  international  law.  Public  interna- 
tional law  has  at  least  some  boundaries  and  monuments  that  are 
well  known  and  universally  recognized.  A  common  court  of 
arbitral  justice  for  the  world  has  now  been  set  up  to  administer  it. 
But  private  international  law  can  hardly  look  for  the  establish- 
ment of  such  a  tribunal  to  protect  its  integrity.  Modern  govern- 
ment proceeds  from  the  consent  of  the  governed.  Nations  may 
agree  to  contribute  to  the  support,  and  to  respect  the  judgments, 
of  the  Hague  Tribunal,  because  national  interests  will  come  before 
it.  Private  individuals  can  become  parties  to  no  such  agreement. 
The  only  legitimate  courts  for  them  are  those  which  deal  with 
private  rights,  and  are  part  of  a  government  established  by  a 
particular  people  for  their  own  good.  It  is  only  rights  enforceable 
in  such  courts  with  which  private  international  law  has  to  do. 

502 


Chap.    XI II]  CONFLICT   OF   LAWS  [§  2 

It  is,  nevertheless,  a  branch  of  science,  and  of  a  science  which, 
above  all  others,  is  important  to  mankind.  Its  scientific  character 
requires  that  it  should  deal  with  universal  conceptions  and  deal 
with  them  in  a  settled  form  and  order.  This  it  is  theoretically 
possible  to  achieve  in  two  ways. 

1.  There  may  be  a  common  agreement  on  certain  rules  of  judg- 
ment to  be  applied  in  all  courts  throughout  the  world  in  the  dis- 
position of  all  controversies  of  a  similar  nature  as  to  matters  of 
private  international  law. 

2.  There  may  be  a  common  agreement  to  determine  which  of 
two  or  more  differing  rules  of  judgment  shall  govern  the  disposi- 
tion of  certain  controversies  as  to  matters  of  private  international 
law,  according  to  their  particular  nature  and  origin,  as  the  case 
may  be. 

In  other  words,  private  international  law  either  may  seek  to  lay 
down  universal  rules  which  are  the  same  in  every  country,  or, 
acknowledging  that  this  is  impossible,  may  content  itself  by  deter- 
mining which  of  several  conflicting  rules,  each  having  the  sanction 
of  a  particular  nation,  shall  be  applied  in  giving  remedial  relief 
under  the  particular  circumstances  of  a  particular  class  of  causes. 

The  idealist  will  think  the  former  of  these  methods  the  only  one 
deserving  the  name  of  scientific.  The  opportunist  will  be  ready 
to  accept  the  other,  at  least  for  the  present  stage  of  the  progress  of 
the  world ;  remembering  that  the  principle  of  accommodation  is 
yet  a  principle. 

§  2.  The  Latin-American  Congresses.  —  Of  the  three  efforts  in 
recent  years  to  advance  private  international  law  which  have 
been  described  as  made  in  different  quarters  of  the  globe,  two  were 
inspired  by  a  primary,  though  not  unlimited,  devotion  to  the  first 
method  ;  the  other  moved  on  the  lines  of  the  second. 

On  December  9, 1877,  there  met  in  Lima  a  diplomatic  Congress  of 
Plenipotentiaries  from  seven  South  American  and  Central  American 
states,  to  consider  the  expediency  of  promoting  uniformity  of  legis- 
lation in  each  and  of  preparing  an  official  codification  of  the  Inter- 
national Private  Law  of  the  continent.  Peru  issued  the  call  for 
the  assembly,  in  the  belief  that  such  action  might  pave  the  way 
for  a  solid  and  durable  confederation  of  all  South  America  and 
Central  America  under  one  republican  form  of  government.  Seven 
states  were  represented,  Argentina,  Bolivia,  Chili,  Costa  Rica, 
Ecuador,  Peru,  and  Venezuela.  It  will  be  observed  that  this  list 
includes  only  one  Central  American  state,  and  does  not  embrace 
Brazil.     All  the  delegates  were  trained  jurists. 

503 


§  2]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

The  Congress  of  Lima  gave  a  year  to  their  work,  adopting  on 
November  9,  1878,  "  ad  referendum  ",  a  convention  establishing 
uniform  rules  on  many  points  of  international  private  law,  and 
later,  on  March  27,  1879,  another  regulating  extradition.1 

The  fundamental  principle  marking  the  former  was  that,  in  the 
matter  of  personal  status  and  juridical  capacity,  the  law  of  one's 
nationality  was  to  control  everywhere  (Title  I,  Art.  2).  Here  was 
the  great  rock  on  which  this  Congress  foundered.  This  convention 
wras  not  ratified  by  the  signatory  powers,  but  it  deserves  special 
notice  as  the  first  successful  attempt  made  in  the  history  of  the 
world  to  codify  international  private  lawr  by  the  instrumentality  of 
a  diplomatic  conference. 

Of  unsuccessful  attempts  there  had  been  two. 

In  1874  the  Netherlands  had  proposed  to  all  the  European 
powers  an  international  conference  on  the  subject  of  the  execution 
of  foreign  judgments.  Italy,  Belgium,  Russia,  Austria,  Den- 
mark, and  Sweden  signified  their  approbation  of  the  scheme. 
France  made  no  answrer,  Great  Britain  and  Norway  declined  to 
adhere  to  it;   and  the  project  was  dropped. 

In  1881  and  1882,  Italy  opened  a  correspondence  with  the  govern- 
ments of  Europe  and  America,  with  a  view  to  agreeing  on  conven- 
tional rules  of  international  private  law  and  particularly  of  such  as 
would  bear  on  the  enforcement  of  foreign  judgments.  The  replies 
were  so  favorable  that  on  March  19,  1884,  she  issued  a  formal  call 
for  a  conference  on  these  subjects  and  a  consideration  of  the  feasi- 
bility of  a  general  codification  of  international  private  law.  It 
was  to  meet  at  Rome  in  November,  1885. 

Fourteen  European  and  seven  American  Powers  accepted  the 
invitation.  A  suitable  program  was  prepared  by  Italy,  but  at  the 
time  set  there  was  an  epidemic  of  cholera  there  which  rendered 
the  proposed  meeting  unsafe,  and  the  final  abandonment  of  the 
whole  matter  was  the  result. 

South  America  now  began  an  independent  movement. 

On  March  1,  1888,  Uruguay  invited  the  assembling,  at  Monte- 
video, in  the  following  August,  of  delegates  from  the  South 
American  states,  to  devise  and  set  up  uniform  rules  of  inter- 
national private  law,  and  thus  to  help  avoid  such  conflicts  of  laws 
as  might  prejudice  the  free  development  of  their  reciprocal  rela- 
tions. Argentina  took  similar,  but  separate  action.  The  Con- 
gress met  accordingly,  and  was  composed  of  four  of  those  states 

1  Manuel  Torres  y  Campos,  "Bases  de  una  Legislacion  sobre  Extra- 
territorialidad",  215. 

504 


Chap.   XIIl]  CONFLICT  OF  LAWS  [§  2 

represented  at  Lima,  and  three  others.  Argentina,  Bolivia,  Chili, 
and  Peru  participated  in  both :  the  three  new  powers  at  Monte- 
video were  Brazil,  Paraguay,  and  Uruguay.  Central  America  did 
not  participate  and  was  not  asked  to. 

The  Congress  of  Montevideo  sat  until  the  following  February, 
and  approved  eight  draft  treaties  on  the  following  subjects :  civil 
law,  commercial  law,  penal  law,  the  law  of  procedure,  literary  and 
artistic  property,  trade-marks,  patents,  and  the  exercise  of  the 
liberal  professions.  An  additional  protocol  was  also  agreed  on, 
containing  various  special  provisions  as  to  the  application  of  the 
laws  of  each  of  the  contracting  parties  in  the  territories  of  the  rest. 
These  projects  were  approved  "  ad  referendum",  there  being  still 
required  in  the  case  of  each  of  them,  in  order  to  give  it  effect  in  and 
between  any  of  the  powers,  ratification  first  by  the  legislative 
department  of  each,  and  then  by  the  department  of  government 
charged  with  the  management  of  foreign  relations.1 

Each  treaty  contained  provisions  looking  to  the  adhesion  to  it 
of  nations  not  invited  to  the  Congress,  as  well  as  of  the  three  which 
were  invited,  but  did  not  send  delegates.  These  provisions  were 
not  very  clearly  worded,  but  as  explained  by  the  terms  of  the  final 
protocol  seem  to  authorize  (at  least  upon  the  invitation  of  the 
Argentine  Republic  and  Uruguay),  the  adhesion  of  any  power  to 
any  of  the  treaties,  provided,  and  provided  only,  such  adhesion 
should  be  acceptable  to  each  of  the  powers  which  had  participated 
in  the  Congress,  and  which  might  subsequently  ratify  the  treaty  in 
question. 

In  fact,  communications  were  sent  by  the  Argentine  Republic 
and  Uruguay  to  other  powers,  outside  of  South  America,  inviting 
their  adhesion.2  Spain  was  one  of  these,  and  on  November  9, 
1893,  through  her  department  of  foreign  affairs,  signified  to  Uru- 
guay her  acceptance  "  ad  referendum  "  of  this  invitation.3  Spain, 
France,  Italy,  and  Belgium  afterwards  fully  acceded  to  the  copy- 
right treaty.4 

The  parliamentary  action  necessary  to  make  the  treaties  opera- 
tive, up  to  December  11,  1894,  had  been  had  in  four  countries, 
Uruguay,  Peru,  Paraguay,  and  the  Argentine    Republic ;    such 

1  Torres  y  Campos,  "Bases  de  una  Legislacion  sobre  Extraterritoriali- 
dad",  221. 

2  "Reports",  etc.,  of  the  International  American  Conference  of  1889, 
568. 

3  Torres  y  Campos,  op.  cit.,  338.  The  necessary  action  by  the  Cortes 
has  not  been  secured,  and  probably  never  will  be. 

4  "Am.  Journal  of  Int.  Law  ",  III,  303. 

505 


§  2]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

ratifications  on  the  part  of  each  having  been  given  in  the  order 
named.  Ecuador  followed  in  1902 ;  Bolivia  and  Colombia  in 
1903. l  Chili  refused  to  ratify  at  least  two  of  them,  those  on  Penal 
Law  and  Civil  Law.2  Brazil  declined  to  ratify  the  latter.3  Guate- 
mala, in  1903,  approved  those  on  procedure,  copyrights,  trade- 
marks, and  patents.4 

§  3.  The  Hague  Conferences.  —  It  was  now  time  for  Europe  to 
take  its  turn. 

The  four  Conferences  of  The  Hague  for  the  advancement  of 
International  Private  Law  were  initiated  by  the  Netherlands  in  1892, 
by  which  government  the  subjects  for  consideration  at  each 
of  them  were  carefully  restricted  and  defined.  At  the  first,  held 
in  1893,  official  delegates  were  present  from  the  Netherlands,  Ger- 
many, Austria-Hungary,  Belgium,  Denmark,  Spain,  France,  Italy, 
Luxembourg,  Portugal,  Roumania,  Russia,  and  Switzerland.  At 
the  second  and  third,  held  respectively  in  1894  and  1900,  these 
powers  were  again  represented,  and  also  Sweden  and  Norway. 
At  the  fourth,  held  in  1904,  a  delegate  was  present  from  Japan, 
and  signed  the  final  protocol. 

The  Conference  of  1893  agreed  upon  tentative  projects  of  laws 
or  treaties,  on  four  subjects :  the  constitution  of  marriage ;  the 
transmission  and  authentication  of  documents ;  commissions  for 
taking  testimony ;  and  successions.  The  Second  Conference 
(1894)  reconsidered  these,  and  agreed  on  a  protocol  for  submitting 
to  the  several  powers  represented  a  project  for  rules  on  six  subjects  : 
the  constitution  and  effects  of  marriage  ;  divorce  and  separation  ; 
guardianships ;  civil  procedure,  embracing  the  points  covered  by 
the  second  and  third  projects  of  the  preceding  year  ;  bankruptcies ; 
and  successions.  In  most  of  the  countries  taking  part  in  these 
Conferences,  parliamentary  ratification  is  required  before  any  such 
convention  can  become  operative.  In  1899  (April  27),  such  action 
having  been  secured  wherever  it  was  necessary,  the  convention  as 
to  civil  procedure  went  into  effect  between  all  the  powers,  subject 
to  a  reservation  by  Italy  on  a  single  point  (the  "  cautio  judicatum 
solvi  ").5 


1  Doc.  No.  310,  57th  Congress,  2d  Session,  804 ;    Doe.  No.  458,  58th 
Congress,  2d  session,  559. 

2  "Reports",   etc.,   of   the   International  American   Conference,    596, 
907. 

s  "Annuaire  de  Legislation  Etrangere",  1890,  1003. 

4  House  Doc.  No.  310,  57th  Congress,  2d  session,  840. 

5  "Actes   de   la    Troisieme   Conference   de   la   Haye,  pour    le    Droit 
International  Prive  ",  78. 

506 


Chap.    XII I]  CONFLICT   OF   LAWS  [§  4 

At  the  Third  Conference,  held  in  1900,  the  other  conventions 
were  reconsidered  and  revised,  and  draft  conventions  agreed  to 
by  twelve  of  the  powers  represented,1  on  four  subjects :  the  con- 
stitution of  marriage  ;  divorce  and  separation  ;  guardianship  ;  and 
successions.  Of  these,  the  conventions  as  to  the  constitution  of 
marriage,  divorce  and  separation,  and  guardianship  received 
parliamentary  approval  in  seven  countries,  being  a  majority  of 
those  which  had  given  their  consent  at  the  Conference,  and  went 
into  full  effect  in  1904  (August  l),2  as  between  these  powers, 
namely,  Germany,  France,  Sweden,  Holland,  Belgium,  Roumania, 
and  Luxembourg.  Spain  joined  them  a  few  weeks  later,  and 
Switzerland  and  Italy  in  July,  1905.3 

By  the  Fourth  Conference  (1904)  certain  amendments  were 
recommended  in  the  convention  on  civil  procedure,  and  revised 
conventions  adopted  on  four  subjects :  the  relations  between  hus- 
band and  wife,  established  by  marriage ;  bankruptcies ;  succes- 
sions ;   and  lunatics.4 

§  4.  The  Latin-American  and  the  European  Agreements  Con- 
trasted. —  We  have,  then,  an  agreement  fully  established  between 
six  nations  of  South  America  for  regulating  most  questions  of 
private  international  law  that  can  arise  in  their  courts.  We  have 
also  an  agreement,  established  in  1899,  between  fourteen  European 
nations  for  regulating  as  to  their  judicial  tribunals  the  proof  of 
foreign  documents ;  the  execution  of  rogatory  commissions  (by 
which  the  courts  of  one  country  render  assistance  to  those  of  an- 
other) ;  suits  by  foreigners  "  in  forma  pauperis  "  ;  and  the  arrest  of 
foreigners  on  civil  process  ;  and  also  an  agreement  between  all  but 
one  of  these  nations  that  foreigners  may  sue  without  giving  any 
security  to  the  defendant  for  his  costs  of  suit,  whenever  none  is 
required  from  native  citizens,  but  that  any  judgment  for  costs 
against  the  plaintiff  in  such  a  suit  may  be  enforced  (i.e.,  rendered 
"  executoire  ")  in  any  of  the  countries  which  are  parties  to  the 
convention.  We  have  further  an  agreement,  established  in  1904 
and  1905,  between  ten  European  nations  for  regulating  most 
questions  of  private  international  law  that  can  arise  in  their  courts 
concerning  the  constitution  of  marriage ;    divorce  and  separation 

1  I  count  Sweden  as  one  of  the  powers,  and  not  Norway. 

2  "Mitteilungen  der  Internationalen  Vereinigung  fur  vergleichende 
Rechtswhsensehaft",  etc.,  for  1905  (No.  24),  477. 

3  "Journal  du  Droit  Int.  Prive",  1905,  797,  1151.  These  conventions 
are  printed  in  the  Appendix  to  the  "Report  of  the  Proceedings  of  the 
Universal  Congress  of  Lawyers  and  Jurists",  held  at  St.  Louis  in  1904. 

4  "Actes  de  la  Quatrieme  Conference  de  la  Haye  pour  le  Droit  Inter- 
national Prive,"  224. 

507 


§  4]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

after  marriage ;  and  guardianships.  It  seems  probable  that  Aiistro- 
Hungary  and  Portugal  will  also  give  their  adhesion  to  it.1 

The  South  American  conventions  are  to  remain  in  force  indefi- 
nitely, subject  to  the  right  of  any  signatory  power  to  withdraw  on 
two  years'  notice.  Each  of  the  European  conventions  runs  till 
the  end  of  five  years  from  the  date  when  a  majority  of  the  powers, 
agreeing  to  its  proposition,  made  a  formal  deposit  of  their  respec- 
tive ratifications  at  The  Hague  ; 2  but  at  the  expiration  of  that  time 
it  is  to  be  deemed  to  be  tacitly  renewed  from  five  years  to  five 
years,  subject  to  denunciation  by  any  power,  on  six  months' 
notice,  as  to  its  own  obligations  under  it.  In  this  way  The  Hague 
convention  as  to  civil  procedure  is  now  in  force  for  its  third  term. 

Let  us  now  ask,  What  are  the  main  differences  between  the  work 
of  the  Congress  of  Montevideo  and  that  of  the  Conferences  at  The 
Hague  ? 

The  former  had  more  ambitious  aims. 

It  commenced  its  labors  under  the  inspiration  of  a  draft  for  a 
general  code  of  private  international  law,  prepared  by  Dr.  D. 
Gonzalo  Ramirez,  the  minister  of  Uruguay  at  Buenos  Aires,  at 
whose  instance  Uruguay  and  the  Argentine  Republic  had  been 
induced  to  call  it  together.3  The  Ramirez  Code  consisted  of  101 
Articles,  followed  by  a  commentary  justifying  the  principles  upon 
which  it  was  framed.  It  was  originally  prepared  as  the  basis  of  a 
treaty  between  Uruguay  and  the  Argentine  Republic  only,  but 
made  for  itself  a  wider  sphere.  This  draft  was  based  on  the  prin- 
ciple that  to  claim  the  benefit  of  private  law  is  a  right  of  humanity, 
and  the  common  patrimony  of  all  men.4  Nationality,  therefore,  it 
was  argued,  rules  political,  but  not  civil  rights.  The  Congress  of 
Jurisconsults  at  Lima  in  1877  had  proceeded  on  another  theory. 
It  had  accepted  nationality  as  the  criterion  of  personal  status  and 
capacity.  The  code  which  it  proposed  had,  therefore,  fallen  by  the 
way.  Modern  European  jurists  were  indeed  treading  in  the  same 
path.  They  were  for  making  the  civil  laws  as  to  a  man's  juridical 
relations  follow  his  national  law,  wherever  he  might  go,  as  well  in 
regard  to  his  purely  personal  relations  as  to  those  affecting  his 
property,  even  if  situated  in  a  foreign  territory.     But  this  was 

1  "Proceedings  of  the  Universal  Congress  of  Lawyers  and  Jurists  at 
St.  Louis",  145. 

2  As  it  was  to  take  effect  sixty  days  after  such  deposit,  it  could  only 
run  for  four  years  and  ten  months,  as  respects  its  first  term. 

3  Torres  y  Campos,  op.  tit.,  208,  219;  "International  American  Con- 
ference Reports",  etc.,  74. 

4  Cf.  Art.  8  of  the  Italian  Civil  Code;  and  Fiore,  "Droit  Int.  Prive  ", 
I,  §  104. 

508 


Chap.    XIII]  CONFLICT   OF   LAWS  [§  4 

opposed  to  the  doctrine  of  Anglo-American  jurisprudence  and  to  the 
spirit  of  the  South  American  constitutions. 

At  the  first  Conference  at  The  Hague  in  1893,  on  the  other  hand, 
the  original  memorandum  submitted  by  the  government  of  the 
Netherlands  to  the  delegates  had  a  much  more  restricted  scope. 
It  referred  to  the  work  of  the  Congress  of  Montevideo  as  more  com- 
prehensive than  that  which  they  at  The  Hague  were  invited  to 
undertake.  This  was  simply,  at  the  outset,  to  endeavor  to  reach 
an  agreement  on  certain  general  principles  in  respect  to  a  few 
selected  subjects.  The  opening  address  of  the  President  (the  late 
Dr.  T.  M.  C.  Asser)  set  forth  this  as  the  proper  aim  of  the  Confer- 
ence with  great  plainness.  We  shall  not,  he  said,  aspire  to  the 
general  unification  of  private  law.  On  the  contrary,  it  is  precisely 
the  diversity  of  national  laws  which  makes  the  necessity  felt  of 
a  uniform  solution  of  international  conflicts.  "  Unification  is 
neither  possible  nor  desirable,  save  for  certain  kinds  of  laws  of  a 
character  essentially  cosmopolitan." 

The  Conferences  at  The  Hague  all  proceeded  on  the  lines  thus 
indicated,  and  there  was  scarcely  an  allusion  to  the  South  American 
conventions  in  any  of  their  discussions  or  reports.  The  space 
under  command  will  serve  to  note  but  a  few  of  the  differences  in 
the  conclusions  of  these  bodies. 

By  the  Hague  conventions  personal  status  generally  follows 
nationality.  By  the  Montevideo  conventions,  it  generally  follows 
domicil.  It  is  needless  to  remark  that,  so  far  as  this  difference  is 
concerned,  the  latter  accords  better  with  the  principles  of  Anglo- 
American  law.  It  may,  however,  well  be  doubted  if  those  princi- 
ples are  in  their  nature  permanent.  The  political,  like  the 
economic  tendencies  of  our  times,  set  strongly  towards  consolida- 
tion and  centralization.  Italy  has  pressed  the  rule  of  nationality 
as  against  that  of  domicil,  because  she  was  busy  in  creating  a  nation 
with  a  strong  central  authority.  Germany  has  followed  her  lead 
from  a  similar  cause.  The  waning  of  the  power  of  our  own  indi- 
vidual States,  as  the  people  of  the  United  States  are  becoming 
more  closely  knitted  together  by  the  bonds  of  commercial  inter- 
course and  the  pressure  of  world-politics,  makes  in  the  same  direc- 
tion. So,  for  Great  Britain,  does  the  rapid  extension  of  her  imperial 
policy. 

But  the  Montevideo  conventions  are  not  altogether  consistent 
in  this  respect.  Take,  for  instance,  the  provisions  as  to  the  con- 
stitution of  marriage.  Title  IV  of  the  treaty  on  International 
Civil  Law  relates  to  Marriage  and  Divorce,  and  seeks  to  cover  the 

509 


§  4]  PART   III      UNIFICATION    OF    LAW  [Chap.    XIII 

entire  field  in  three  brief  Articles.  By  Article  II,  which  treats  of 
the  constitution  of  marriage,  the  capacity  to  contract  it,  as  well 
as  its  formalities,  continuance,  and  validity  are  to  be  governed  by 
the  law  of  the  place  where  the  contract  is  entered  into  ;  saving  only 
exceptions  from  want  of  age,  near  relationship,  prior  subsisting 
marriage,  and  the  killing  by  either  party  of  one  to  whom  the  other 
had  been  previously  married,  in  order  to  free  the  latter  from  the 
bond  of  matrimony.  Here  the  "  lex  domicilii  "  plays  no  part,  nor 
does  nationality.  Article  13,  however,  provides  that  the  law  of  the 
matrimonial  domicil  shall  govern  as  to  the  legal  separation  of  the 
couple,  and  as  to  divorce,  provided  the  grounds  of  divorce  be 
sufficient  under  the  law  of  the  place  where  the  marriage  took  place. 

The  Hague  convention  on  the  constitution  of  marriage  alone 
covers  eight  Articles.  While  it  agrees  with  the  Montevideo  con- 
vention in  letting  the  "  lex  loci  celebrationis  "  regulate  the  form  of 
marriage,  it  saves  the  rights  (1)  of  the  nation  to  which  the  parties 
belong,  to  refuse  to  recognize  it,  unless  the  requirements  of  its  own 
laws  have  been  also  observed,  and (2)  of  all  nations  to  recognize  it 
if,  though  null  in  the  place  of  celebration,  it  was  solemnized  in  a 
form  sufficient  by  the  national  laws  to  which  each  party  was  sub- 
ject. It  also  recognizes  marriages  of  foreigners  according  to  the 
forms  of  their  own  law,  at  a  legation  or  consulate,  in  a  country  that 
makes  no  opposition.  Nor  can  such  opposition  be  of  avail  if 
founded  on  the  insufficiency  of  a  previous  divorce  of  one  of  the 
parties,  or  on  ecclesiastical  vows.  On  the  other  hand,  if  the  law 
of  the  nation  to  which  the  parties  belong  forbids  their  marriage  on 
purely  religious  grounds,  but  the  "  lex  loci  celebrationis  "  never- 
theless permits  it,  the  marriage  will  be  good  there,  and  in  such 
other  of  the  signatory  powers  as  may  choose  to  recognize  it.  What 
their  national  law  is,  parties  intending  marriage  are  bound  first 
to  prove  to  the  satisfaction  of  the  authorities  of  the  place  of  cele- 
bration. 

In  contrast  with  the  single  Article  which  has  been  described  in 
the  Montevideo  convention  regulating  divorce  and  separation,  one 
of  the  Hague  conventions  is  entirely  devoted  to  the  subject.  It 
contains  nine  Articles,  and  follows  the  former  in  requiring  grounds 
for  a  divorce  which  are  recognized  as  sufficient  by  the  law  of  more 
than  one  country.  The  Montevideo  convention  calls  for  grounds 
so  recognized  both  by  the  law  of  the  matrimonial  domicil  and  by 
that  of  the  place  where  the  marriage  took  place.  The  Hague  con- 
vention calls  for  grounds  recognized  both  by  the  "  lex  fori  "  and  by 
that  of  the  nation  or  nations  to  which  the  parties  belong,  unless 

510 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  5 

the  former  treats  the  authority  of  the  latter  alone  as  sufficient. 
The  ignoring  of  the  "  lex  fori  "  which  marks  the  Montevideo  con- 
vention seems  plainly  an  element  of  weakness.  To  dissolve  a 
relation  of  such  social  importance  as  that  of  marriage  is  what  no 
state  should  be  called  upon  to  do,  unless  its  own  law  justifies  such 
relief  under  similar  circumstances. 

The  great  and  vital  distinction  between  the  Montevideo  and  the 
Hague  conventions  is  that  the  former  aims  at  dealing  shortly  with 
universals,  while  the  latter  is  content  to  deal  specifically  with 
particulars. 

§  5.  The  Pan-American  Congresses.  —  The  Latin-American 
love  for  legal  generalization  showed  itself  even  more  strongly  in  the 
convention  adopted  by  the  Second  Pan-American  Congress  at 
Mexico  in  1902,  looking  to  the  immediate  and  complete  codification 
of  both  public  and  private  international  law  by  a  commission  of 
five  American  and  two  European  jurists.1  Brazil  was  the  first  to 
propose  this,  and  the  Bolivian  parliament  ratified  the  convention 
in  1903.2  Honduras  did  the  same,  but  no  other  powers  gave  their 
adhesion  to  it,  and  the  convention  therefore  lapsed. 

The  First  Pan-American  Congress,  held  in  Washington  from  Oc- 
tober 2, 1889,  to  April  19, 1890,  had  before  it  for  special  considera- 
tion the  various  Montevideo  conventions.  These,  as  already 
stated,  had  then  been  ratified  by  only  a  few  powers.  The  Congress 
contented  itself  with  recommending  the  adhesion  by  every  Ameri- 
can power  to  those  on  literary  and  artistic  property,  on  patents,  and 
on  trade-marks,3  and  their  careful  study  of  the  rest,  so  far  as  they 
had  not  already  ratified  them,  with  a  view  to  concluding,  within 
the  following  year,  whether  to  approve  them  or  not,  and  if  to 
approve,  whether  it  be  with  or  without  modifications. 

The  proposition  of  the  Second  Pan-American  Congress  of  Mexico 
having  failed  of  ratification,  it  was  renewed  as  respects  American 
international  law  by  the  Third  Pan-American  Congress,  held  at 
Rio  de  Janeiro  in  1906,  and  a  convention  to  put  it  in  effect  adopted, 
which  has  been  ratified  by  fourteen  Powers.  Two  commissions 
were  created,  one  to  codify  American  Public  International  Law,  and 
the  other  to  codify  American  International  Private  Law. 

At  the  Fourth  Pan-American  Congress,  held  at  Buenos  Aires  in 
1910,  these  committees  reported  progress.  Detailed  codes  had  in 
fact  been  prepared,  but  had  not  been  sufficiently  studied  to  justify 

1  Senate  Doc.  330,  57th  Congress,  1st  session,  203;  Report  of  the  Pro- 
ceedings of  the  Congress,  Mexico,  1902,  147. 

2  Doc.  458,  58th  Congress,  2d  session,  559. 

3  Report  of  the  Conference,  II,  569,  5S2. 

511 


§  5]  PART   III      UNIFICATION   OF   LAW  [Chap.    XIII 

a  recommendation  for  their  adoption.  The  prevailing  sentiment 
was  for  advancing  cautiously,  and  was  well  expressed  by  the  Presi- 
dent of  the  Congress,  Senor  Nabuco,  in  his  inaugural  address. 
"  To  us,"  he  said,  "  it  seems  that  the  great  object  of  these  con- 
ferences should  be  to  express  collectively  what  is  already  under- 
stood to  be  unanimous ;  to  unite,  in  the  interval  between  one  and 
another,  what  may  have  already  completely  ripened  in  the  opinion 
of  the  continent ;  and  to  impart  to  it  the  power  resulting  from  an 
accord  amongst  all  American  nations.  This  method  may  appear 
slow,  but  I  believe  it  to  be  the  only  efficacious  one,  the  only  way 
of  not  killing  at  its  inception  an  institution  which  is  worthy  of 
enduring  throughout  the  centuries."  * 

This  Congress  agreed  on  conventions  as  to  patents ;  designs  and 
industrial  models ;  and  the  collection  of  private  debts  by  govern- 
ments from  governments.  The  latter  was  ratified  by  the  United 
States  in  1914.  At  the  preceding  Congress  (the  third),  a  conven- 
tion was  adopted,  "  ad  referendum  ",  to  regulate  the  position  of 
naturalized  aliens  who  return  to  reside  in  their  original  country. 
This  has  been  ratified  by  Brazil. 

A  fifth  Pan-American  Congress  is  scheduled  to  meet  at  Santiago, 
Chili,  November  29,  1915,  when  a  further  report  is  expected  as  to 
the  proposed  codifications  of  American  international  law. 

§  6.  Operation  of  the  Rules  in  Practice.  —  What  has  been  the 
practical  working  of  such  of  the  international  conventions  as  have 
been  ratified  and  gone  into  effect  ?  It  may  be  said  to  have  been 
generally  satisfactory. 

Those  of  American  origin  would  seem  to  have  been  less  care- 
fully thought  out  than  those  prepared  at  the  Hague.  They  are 
more  general  in  terms,  and  more  ambitious  in  design.  Universal 
propositions  are  apt  to  require  universal  exceptions.  The  general 
protocol  which  closed  the  list  of  the  Montevideo  conventions 
provides  (Art.  IV)  that  the  laws  of  other  States  shall  never  be 
enforced  as  against  the  political  institutions,  police  regulations, 
or  customs  entering  into  the  "  lex  fori."  This  opens  a  wide  door 
of  relief  from  affirmations  of  general  principles,  the  application  of 
which  might  be  found  inconvenient  in  practice. 

The  South  American  courts,  in  expounding  these  conventions, 
have  been  inclined  to  give  full  force  to  all  their  exceptions  and 
limitations,  even  if  they  have  not  added  to  them  by  construction. 

The  New    York  Life  Insurance  Company  Case.  —  A  lawyer  in 
Buenos  Aires,  Senor  Lamarca,  retained  by  the  New  York  Life 
»  "Am.  Journal  of  Int.  Law",  III,  968. 
512 


Chap.    XIII]  CONFLICT  OF  LAWS  [§  6 

Insurance  Company  to  defend  a  suit  upon  a  policy,  satisfied  him- 
self that  it  had  been  fraudulently  issued,  and  through  improper  and 
criminal  practice  on  the  part  of  a  certain  insurance  solicitor  in 
Montevideo,  named  Castro.  Thereupon  he  filed  a  complaint  in  a 
criminal  court  in  the  latter  city,  as  attorney  for  the  company, 
charging  Castro  with  this  offense.  By  the  law  of  Uruguay,  no 
lawyer  can  act  for  a  client  as  attorney  of  record  without  a  written 
power  of  attorney.  Senor  Lamarca  had  none  authorizing  him  to 
institute  such  a  prosecution,  nor  was  the  company  aware  of  his 
action  in  this  respect.  Senor  Castro  made  defense  and  was  ac- 
quitted. He  then  procured  the  institution  against  his  accusers, 
including  the  New  York  Life  Insurance  Company  among  them,  of 
civil  and  penal  actions,  demanding  f.  250,000  damages  for  the 
injury  which  had  been  done  him  by  their  false  charges.  Uruguay 
follows  the  European  practice  of  allowing  a  demand  for  damages 
in  favor  of  the  party  injured  by  an  offense  to  be  joined  with  a 
criminal  complaint.1  An  appearance  was  entered  for  the  com- 
pany in  defense  to  the  claim  for  damages,  but  again  without  any 
written  power  of  attorney.  Judgment  was  rendered  in  December, 
1900,  condemning  Senor  Lamarca  to  six  months'  imprisonment, 
and  declaring  the  company  liable  for  such  damages  as  might  be  as- 
sessed by  arbitrators  according  to  law.  They  were  then  assessed 
by  arbitrators,  as  is  the  practice  there,  after  hearing  the  company 
(which  then  appeared  by  an  attorney  holding  a  written  power),  at 
the  full  amount  claimed,  with  costs,  including  counsel  fees. 

The  company  had  a  branch  office  in  Montevideo.  Payment  of 
the  judgment  having  been  refused  there,  proceedings  in  insolvency 
were  instituted  against  it,  and  a  decree  of  adjudication  obtained, 
notwithstanding  a  law  which  provided  that  such  proceedings  could 
only  be  brought  by  one  holding  a  commercial  obligation.  Senor 
Castro  then  made  over  his  claim  to  a  syndicate,  which  undertook 
its  enforcement  for  its  own  profit.  By  the  treaty  of  Montevideo 
as  to  procedure,  judgments  and  awards  of  arbitrators  in  civil  and 
commercial  matters,  rendered  in  one  of  the  signatory  powers,  have 
in  the  territory  of  any  other  the  same  force  as  in  the  territory  of  the 
former,  provided  they  were  (a)  rendered  by  a  tribunal  competent 
under  the  principles  of  international  law  ("  dans  l'ordre  inter- 
national ") ;  (6)  were  final ;  (c)  the  defendant  having  been  legally 
summoned,  or  represented,  or  regularly  declared  in  default ;  and 
(d)  were  not  contrary  to  the  laws  of  public  order  in  the  country 
where  their  enforcement  might  be  sought.  Article  IX  required 
1  See  the  French  Code  d' Instruction  Criminelle,  Arts.  6,  358,  etc. 

513 


§  6]  PART   III      UNIFICATION    OF   LAW  [Chap.  XIII 

the  due  execution  of  rogatory  commissions  for  the  performance 
of  any  acts  required  by  any  of  the  treaty  provisions.  The  com- 
panion treaty  as  to  international  commercial  law  provided  that  one 
might  be  adjudged  an  insolvent  wherever  he  had  a  commercial 
domicil,  though  incidentally  carrying  on  business  in  any  other 
nation,  or  maintaining  agencies  or  branch  offices  there  which  did 
business  on  the  account  and  credit  of  the  principal  house ;  and  if 
there  should  be  two  or  more  independent  commercial  houses  in 
different  countries,  the  courts  of  each  were  to  have  jurisdiction  in 
insolvency  over  the  house  maintained  there. 

The  syndicate,  relying  on  these  treaties,  asked  and  obtained 
rogatory  commissions  from  the  judges  of  Uruguay  to  those  of  the 
Argentine  Republic  for  the  institution  of  three  suits;  one  to  se- 
quester the  property  of  the  company's  branch  office  at  Buenos 
Aires  ;  the  second  to  sequester  a  public  deposit  of  securities  which 
it  had  made  there  with  the  government  for  the  protection  of 
creditors ;  the  third,  to  compel  payment  by  the  branch  office  of 
counsel  fees,  amounting  to  30,000  piastres,  taxed  against  the  com- 
pany in  the  Montevideo  judgment.  The  two  commissions  first 
named  were  presented  to  the  court  of  commerce  of  Buenos  Aires, 
which  responded  by  issuing  writs  of  sequestration  founded  on  the 
Montevideo  adjudication  in  insolvency,  both  against  the  local  branch 
office  and  the  public  deposits.  The  third  commission  was  presented 
to  one  of  the  Federal  Judges,  who  declined  to  interfere  for  the  en- 
forcement of  the  judgment  for  counsel  fees,  on  the  ground  that  the 
treaty  had  no  reference  to  judgments  rendered  in  the  course  of 
any  criminal  proceeding.  This  ruling  was  affirmed  on  appeal,  but 
appeals  from  the  judgments  of  the  court  of  commerce  were  sus- 
tained, the  higher  courts  holding  that  the  only  commercial  domicil 
of  the  insurance  company  was  in  New  York ;  its  branch  offices  in 
Montevideo  and  Buenos  Aires  being  simply  agencies  and  not 
independent  commercial  houses. 

By  thus  looking  into  the  foundations  of  the  Uruguayan  judg- 
ments, the  Argentine  courts  read  into  the  treaty  of  Montevideo  a 
rule  that  a  judgment  rendered  in  one  of  the  signatory  governments 
could  only  be  enforced  in  another  by  virtue  of  an  order  from  a 
judicial  tribunal  of  the  latter,  in  the  nature  of  an  exequatur  or  a 
decree  of  homologation.1  It  would  seem  that  the  award  of  $1 ,250,- 
000  against  the  insurance  company  must  have  been  grossly  exces- 

1  See  a  discussion  by  Professor  E.  S.  Zeballos,  of  the  University  of 
Buenos  Aires,  in  the  "Bulletin  Argentin  de  Droit  International  Prive", 
I,  341. 

514 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  6 

sive.  Nevertheless  it  was  made  in  a  proceeding  to.  which  the  com- 
pany was  regularly  a  party,  and  in  which  it  had  been  duly  heard. 
The  rogatory  commissions  seeking  its  enforcement  were  also 
regularly  issued.  The  treaty  of  Montevideo,  taken  literally, 
would  seem  to  entitle  the  syndicate  to  collect  its  judgments  by  the 
aid  of  the  Argentine  courts.  But  the  mode  of  collection  pursued 
was  through  proceedings  in  insolvency,  and  here  a  jurisdictional 
question  fairly  arose.  If  the  company  had  no  commercial  domicil 
in  Uruguay,  the  courts  of  that  country  had  no  power  to  adjudge 
it  an  insolvent  debtor.  The  Hague  Conferences  provided  in  their 
convention  as  to  insolvency  procedure,  that  an  adjudication  in 
insolvency  in  one  of  the  contracting  nations  could  not  be  enforced 
in  another  without  a  formal  exequatur,  and  set  out  in  particular 
what  must  be  shown  to  obtain  one.  The  conditions  of  the  exequa- 
tur which  the  ruling  of  the  Argentine  courts  requires  are  necessarily 
left  to  be  settled  by  the  general  principles  of  jurisprudence  recog- 
nized in  the  country  from  whose  courts  the  enforcement  of  the 
judgment  is  sought.  Only  such  of  those  principles  as  seem  essen- 
tial to  international  justice  should  be  applied. 

It  is  worthy  of  remark  that  several  years  after  her  adhesion  to 
the  treaty  of  Montevideo,  the  Argentine  Republic  (May  29,  1901), 
concluded  a  treaty  with  Italy  as  to  rogatory  commissions  and  for- 
eign judgments,  much  more  on  the  lines  of  the  Hague  Convention. 
By  this,  judgments  of  the  courts  of  either  power  are  to  be  enforced 
in  the  other  only  upon  an  exequatur,  to  be  granted  if,  and  only 
if,  (1)  the  court  was  one  of  competent  jurisdiction  ;  (2)  the  parties 
were  properly  cited,  or  voluntarily  appeared ;  and  (3)  the  judg- 
ment rested  on  a  personal  obligation,  or  one  not  contrary  to  the 
law  or  inimical  to  the  public  order  of  the  nation  where  the  exequa- 
tur is  sought.1 

Other  Cases.  —  Another  illustrative  case  arose  out  of  the  Hague 
convention  as  to  Divorce.  This  has  been  ratified  by  twelve 
Powers,  of  which  Italy  was  one  ;  and  her  courts  have  decided  that 
foreign  divorces,  granted  under  the  conditions  prescribed  in  that 
convention  in  one  of  the  countries  that  are  parties  to  it,  cannot  be 
deemed  inconsistent  either  with  the  public  law  of  Italy,  or  with  her 
principles  of  public  order  and  good  morals. 

As  showing  the  importance  of  the  Hague  convention  as  to  guar- 
dianships, a  romantic  suit  may  be  mentioned,  decided  in  1908  by 
the  Civil  Tribunal  of  the  Seine,  in  France.  A  French  couple  on  a 
visit  to  Germany  took  a  fancy  to  a  little  girl  of  German  parentage, 

1  "Blatter  fur  vergleichende  Rechtswissenschaft",  etc.,  April,  1913,31. 

515 


§  6]  PART   III      UNIFICATION   OF  LAW  [Chap.  XIII 

adopted  her,  brought  her  to  France,  and  brought  her  up  there,  as 
if  she  were  their  own  child.  The  girl  was  illegitimate.  Her 
mother,  who  had  gladly  given  her  away  in  adoption,  after  some 
years  married,  and  told  her  husband  the  whole  story.  He  was  so 
magnanimous  as  to  determine  to  take  the  child  under  his  own  care, 
and  procured  the  appointment  of  a  guardian  by  the  proper  German 
court.  A  contest  ensued  between  him  and  the  survivor  of  the 
French  adopting  parents,  at  their  domicil  and  that  of  the  child  in 
France.  The  decision  was  that  as  the  Hague  convention,  to  which 
both  nations  were  parties,  declared  that  the  guardianship  of  a  minor 
was  regulated  by  the  law  of  his  nation,  the  German  judgment  was  con- 
clusive in  France.  It  was  therefore  ordered  that  it  be  made  executory 
and  the  custody  of  the  child  handed  over  to  the  German  guardian.1 

§  7.  Present  Tendencies  of  Principle.  —  I  listened  with  great 
interest  to  the  paper  of  my  late  distinguished  friend,  Professor 
Friedrich  Meili,  when  read  at  the  St.  Louis  Exposition.  With 
regard  to  the  concluding  part  of  his  paper,  concerning  the  prospects 
of  Anglo-American  concurrence  in  conventions  upon  the  present 
subject,  I  offer  the  following  views : 

The  subject  of  the  conflict  of  laws  is  of  especial  importance  to  the 
Bar  and  the  Bench  of  the  United  States,  where  there  are  forty- 
eight  different  sovereignties,  each  with  full  local  jurisdiction  and 
equal  in  autonomy  —  subject,  to  be  sure,  in  national  affairs,  to 
another  sovereignty,  but  subject  to  it  in  national  affairs  only. 

It  takes  at  least  the  space  of  a  generation  for  any  great  advance 
in  international  relations  to  become  fully  established.  In  1874, 
the  Netherlands  proposed  in  vain  to  the  powers  of  Europe  the 
convocation  of  a  conference  to  establish  a  judicial  union  between 
them  under  which  the  courts  and  governments  of  each  should 
recognize  a  personal  status  acquired  in  any  other,  and  under  which 
rules  should  be  framed  for  the  enforcement  of  foreign  judgments. 
In  1904,  the  Netherlands  had  the  happiness  of  seeing  the  results 
thus  aimed  at  largely  achieved.  England  was  approached  by  that . 
Government  with  an  invitation  to  join  in  the  first  of  these  Hague 
conferences  in  1893,  but  declined.  Her  government  felt  that  the 
substratum  of  her  laws  and  her  judicial  system  differed  too  widely 
from  that  of  Continental  Europe  to  warrant  her  adhesion  to  the 
movement ;  and  if  the  United  States  had  received  a  similar  invita- 
tion, it  would  probably  have  been  declined  for  similar  reasons, 
especially  in  view  of  our  constitutional  limitations. 

1  FerMnhaus  v.  Pedrier,  "Nouvelle  Revue  pratique  de  Droit  Interna- 
tional", for  1909,  69. 

516 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  7 

The  Anglo-American  distinction  between  real  and  personal 
property  is  so  deeply  rooted  that  anything  calculated  to  unsettle  it 
must  be  looked  upon  by  the  English  and  American  bar  with  some 
distrust,  if  not  disfavor.  But  is  it  not  evident  that,  on  principle, 
this  distinction  has  long  ceased  to  occupy  its  original  position? 
The  day  has  passed  away  when  a  man  or  family  was  known  by  the 
land  on  which  they  had  their  home,  and  when  it  was  the  tenure  of 
that  land  which  measured  a  man's  main  rights  as  a  citizen,  or  as  a 
ruler.  How  many  families  in  countries  recognizing  a  hereditary 
and  landed  aristocracy  are  to-day  the  owners  of  the  estate  from 
which  they  originally  derived  their  names?  The  proudest  house 
in  Europe,  the  House  of  Hapsburg,  if  it  sought  its  original  ancestral 
domain,  would  find  it  in  the  hands  of  strangers,  in  the  canton  of 
Neuchatel,  in  the  Swiss  Republic.  The  political  reasons  for  con- 
trolling succession  to  land  by  the  laws  of  the  country  in  which  it 
lies  are  also  no  longer  what  they  were.  Its  ownership  gives  few 
and  continually  fewer  political  rights.  Its  economic  significance 
as  a  form  of  capital  is  steadily  declining.  It  has  been  replaced  in 
this  respect  by  the  modern  private  corporation.  Great  and  small 
fortunes,  alike,  we  all  know,  are  largely,  if  not  mainly,  made  up  of 
corporate  securities,  not  land.  Let  the  American  or  English  lawyer 
once  bring  himself  to  recognize  the  fact  that,  except  as  a  subject 
of  taxation,  land  considered  as  private  property  now  stands  to  the 
government  in  no  relation  different  in  kind  from  that  borne  by 
property  of  any  other  description,  and  he  will  find  it  not  difficult  to 
look  upon  the  settlement  of  successions  and  bankruptcies  and  the 
management  of  guardianships  from  the  standpoint  of  Continental 
Europe. 

A  more  serious  difficulty,  perhaps,  is  that  Anglo-American  law 
centers  all  that  pertains  to  the  civil  status  of  the  individual  in  his 
home,  that  is,  in  his  domicil,  and  does  not  test  it  by  his  nationality. 
When,  as  a  hundred  years  ago,  here  and  everywhere,  nationality 
was  unchangeable  except  by  the  express  consent  of  the  sovereign, 
there  was  a  reason  for  preferring  domicil.  That  could  be  freely 
chosen ;  but  now  nationality  can  be.  The  old  maxim,  "  nemo 
patriam  in  qua  natus  est  exuere  nee  ligeantiae  debitum  ejurare 
possit",  has  perished ;  and  has  perished  largely  by  the  efforts  of 
statesmen  and  the  provisions  of  treaties  during  the  last  generation. 
This  removes  one  great  objection  to  domicil,  and  founds  a  new 
argument  in  favor  of  nationality,  as  a  test  of  property  rights  and 
property  succession.  On  the  other  hand,  in  some  countries,  and 
especially  in  the  United  States,  it  adds  another  objection  against 

517 


§  7]  PART   III      UNIFICATION   OF   LAW  [Chap.  XIII 

the  criterion  of  nationality.  The  emigration  of  foreigners  into  the 
United  States,  with  the  purpose  of  settling  here,  either  tempora- 
rily or  permanently,  is  immense  and  under  ordinary  conditions 
increasing.  Naturalization,  if  they  wish  it,  cannot  be  had  for 
five  years.  Meanwhile,  they  may  acquire  a  domicil.  If  they 
die  during  that  time,  or  if  they  marry  during  that  time,  or  a 
great  change  in  their  property  relations  occurs,  it  might  be  awk- 
ward for  American  courts  to  search  out  and  apply  a  foreign  law  to 
determine  the  questions  that  arise  if  governed  by  the  law  of  their 
original  nationality. 

There  are  many,  however,  who  do  not  think  that  these  difficulties 
arising  out  of  a  choice  of  nationality  rather  than  domicil,  by  the 
Hague  Conferences,  as  the  test  of  personal  status,  and  the  distinc- 
tion between  land  and  other  property  so  peculiar  to  England  and 
America,  are  fatal  necessarily  to  their  acceptance  of  the  principles 
of  these  Hague  Conferences ;  and  it  is  to  be  hoped  that  in  future 
conferences  of  this  character  the  invitations  of  the  powers  extend- 
ing them  may  not  be  limited  to  a  single  continent. 

It  is  international  conferences  like  these  that  are  bringing  the 
civilized  world  together  in  matters  of  governmental  regulation. 
They  are  not  called  to  deal  with  great  generalities,  but  with  practi- 
cal questions  of  present  importance.  They  have  to  do  with 
particulars  rather  than  with  universal  propositions,  and  in  legal 
reform  or  legal  statement  to  attempt  everything  is  to  fail  in  every- 
thing. 

Constitutional  limitations  in  the  United  States  have  an  impor- 
tant bearing  on  any  project  for  regulating  by  treaty  matters  of 
international  private  law.  The  United  States,  as  a  nation,  can 
hardly,  under  present  conditions,  so  far  change  their  political 
traditions  as  to  extend  the  treaty  power  to  a  concert  of  legislation 
on  matters  of  such  a  character,  which  are  purely  local  in  their 
nature,  with  nations  on  other  continents.  The  States,  acting 
individually,  could  not  become  parties  to  such  a  concert  among 
themselves  and  foreign  Powers,  for  it  is  expressly  forbidden  by  the 
Constitution  of  the  United  States.  They  can,  with  the  consent  of 
Congress,  agree  among  themselves  to  establish  similar  conventions, 
and  they  can,  without  that  consent,  change,  each  for  itself,  their 
laws  so  as  to  bring  them  into  closer  accord  on  these  subjects  or  on 
any  other.  They  have  been  doing  this  for  many  years  through  the 
annual  Conference  of  Commissioners  on  Uniform  State  Legislation, 
in  which  most  of  our  States  and  Territories  are  now  represented, 
and  which  gave  encouragement  to  the  Government  of  the  Nether- 

518 


Chap.   XIII]  CONFLICT  OF  LAWS  [§  7 

lands  to  call  these  various  international  conferences  held  at  the 
Hague  of  which  mention  has  been  made. 

But  it  is  as  easy  to  repeal  as  to  enact.  There  is,  therefore,  no 
assurance  of  stability  to  the  beginnings  of  uniform  legislation 
which  have  been  made,  at  the  instance  of  these  Conferences  or  of 
the  American  Bar  Association,  by  the  several  States. 

In  this  respect  the  powers  of  Europe  occupy  a  position  much 
more  favorable  to  permanence  of  policy.  Each  of  these  Hague 
treaties  or  conventions  was,  by  its  terms,  to  remain  in  force  for 
five  years,  and  then  be  tacitly  considered  as  renewed  unless  ex- 
plicitly denounced  and  terminated.  All  of  them  have  been  recog- 
nized not  only  by  the  executive,  but  by  the  legislative  departments 
of  at  least  seven  European  states,  and  must  eventually,  to  have 
full  effect,  be  ratified  by  the  legislatures  of  most  of  the  rest.  This 
gives  them  additional  assurance  of  stability.  But  stability  is  best 
guaranteed  by  the  intrinsic  character  of  these  treaties  themselves. 
They  have  not  attempted  too  much.  They  have  not  aimed  at  the 
establishment  of  uniform  laws  in  respect  to  the  family,  but  uniform 
rules  for  applying  the  family  law  of  particular  states ;  —  not,  for 
instance,  that  marriage  shall  be  celebrated  in  accordance  with  the 
laws  of  any  one  state  at  all  times,  but  that  marriage  between 
those  who  are  citizens  of  a  certain  state  may  be  celebrated  in 
accordance  with  the  laws  of  that  state,  wherever  that  celebration 
may  occur. 

The  design  of  the  Hague  treaties,  then,  is  simply  to  prevent  a 
conflict  between  the  laws  of  one  country  and  those  of  others  on  the 
same  subject,  by  determining,  in  advance,  by  means  of  general 
regulations,  which  shall  govern,  if  the  case  turning  on  them  comes 
before  the  courts.  Each  country  may  think  its  own  laws  the  best, 
and  yet  each  may,  without  any  inconsistency,  agree  to  let  for- 
eigners in  certain  cases  be  subject  to  foreign  rules,  with  which 
they  may  be  expected  to  be  more  familiar.  It  is  this  spirit  of 
moderation,  this  contentment  with  comparatively  slight  advances, 
which  is  so  striking  a  feature  of  the  work  of  the  four  Hague  Con- 
ferences, and  it  is  this  that  carries  with  it  the  surest  promise  that 
their  results  will  endure.1 

1  See  a  partial  bibliography,  prepared  by  the  writer  in  1904,  of  what  had 
been  printed  in  reference  to  the  Hague  Conferences  for  regulating  dif- 
ferent matters  of  Private  International  Law,  which  will  be  found  in  Appen- 
dix B  of  the  "Official  Report  of  the  Universal  Congress  of  Lawyers  and 
Jurists"  at  St.  Louis  in  1904;  and  a  paper  on  "The  International  Con- 
gresses and  Conferences  of  the  Last  Century  as  Forces  working  toward  the 
Solidarity  of  the  World",  in  the  "American  Journal  of  International 
Law",  I,  565. 

519 


§  1]  PART   III       UNIFICATION    OF    LAW  [Chap.  XIV 


Chapter  XIV 

A  WORLD  COMMON  LAW: 
ITS  NEED,  ITS  SCOPE,  AND    ITS   PROSPECTS 

A  Symposium 

I.     THE    NECESSARY    DIVERSITY    OF    LAW,    ACCORDING    TO 
RACES  AND  NATIONS 

By  Edmond  Picard  1 

§  1.  The  Utopia  of  an  Universal  Uniform  Law.  — The  union  of 
terrestrial  humanity,  of  a  billion  and  a  half  souls,  into  a  single 
homogeneous  whole,  either  of  religion,  of  language,  of  art,  or  of 
law,  is  in  all  likelihood  an  Utopia ;  and  were  it  forced  upon  us,  it 
would  be  a  climax  of  artificiality,  of  despotism,  and  of  fragility. 

Like  morals,  religion,  art,  politics,  so  law  has  strangely  suffered, 
and  still  suffers,  from  that  mania  for  uniformity  which  would  have 
everything  alike,  —  a  world  rendered  intensely  monotonous  by  the 
destruction  of  all  the  noble  diversities  which  make  life  so  moving 
and  fascinating  a  spectacle.  Happily,  a  more  discerning,  and 
hence  a  more  exact  view,  of  the  activity  and  evolution  of  peoples 
is  beginning  to  discredit  this  strange  obscurantism,  this  geometric 
and  Jacobean  systematization.  It  is  becoming  rather  common  to 
regard  it  as  a  marked  aberration  to  aspire  to  subject  all  our  poor 
humanity  to  a  single  system  of  law,  and  to  suppose  that  any  dis- 
ciplinary or  foolishly  paternal  regime  of  instruction  would  succeed 
in  taking  from  races  and  peoples  those  attributes  that  constitute 
their  originality  and  at  the  same  time  their  beauty  and  attraction. 

1  [This  author  is  a  Senator  of  Belgium,  Professor  of  Law  in  the  New 
University  of  Brussels,  and  former  President  of  the  Bar  of  the  Belgian 
Supreme  Court. 

The  essay  (of  which  the  introductory  paragraphs  are  here  omitted) 
appeared  originally  in  the  "Journal  du  droit  international  prive  et  de  la 
jurisprudence  comparee"  (Clunet),  1901,  Vol.  28,  p.  417.  Its  substance, 
and  in  part  its  text,  has  since  been  reprinted  in  the  author's  "  Le  droit  pur  " 
(Paris,  Flammarion,  1910,  §§  141-144),  —  a  brilliant  discourse,  of  concise 
encyclopedic  scope,  much  discussed  in  all  recent  French  writings  on  the 
philosophy  of  law.  —  Ed.] 

520 


Chap.    XIV]  A   WORLD    COMMON   LAW  [§  2 

§  2.  Ethnical  Differences  are  Permanent.  —  In  law,  as  in  all 
the  other  great  forces  directing  the  activities  of  the  ethnical  races 
into  which  the  earth  is  divided,  and  in  their  subdivisions,  the 
nations  (simple  historical  varieties  of  these  fundamental,  natural, 
and  original  groups),  differences  have  always  been  apparent,  based 
upon  diversity  of  mentality.  A  recent  science,  the  psychology  of 
peoples,  already  rich  in  curious  and  important  data,  has  as  its 
object  the  study  and  explanation  of  these  varieties.  They  are  at 
bottom  very  evident  and  simple,  so  soon  as  we  become  accustomed 
to  observing  them.  They  have  so  long  suffered  a  disastrous  and 
sentimental  obscuration,  because  of  the  false  and  childish  doctrine 
of  the  unity  of  the  human  race,  both  as  to  certain  somatological 
and  mental  elements,  and  also  as  to  all  of  its  almost  infinite  detail. 

The  race  (we  are  in  the  best  position  to  understand  this)  is  the 
controlling  factor  in  the  aspects  which  human  activities  assume  in 
their  various  realizations.  As  yet  this  idea  scarcely  begins  to  be 
current  among  Europeo-American  nations.  The  truth  has  been 
veiled  from  them,  on  the  one  hand  by  the  childish  conception  of 
the  unity  of  our  first  progenitors,  accepted  by  Christianity;  on 
the  other  hand,  and  no  less  obstinately,  by  the  pretension  of  the 
unity  of  the  human  race  so  dear  to  sentimental  ideologists. 

It  is  scarcely  any  longer  necessary  to  combat  the  Biblical  fable 
of  the  two  human  beings  modeled  by  Jehovah  in  the  Garden  of 
Eden.  This  puerile  monogenism  has  been  discarded  by  science. 
One  must  be  unusually  behind  one's  age  not  to  admit  that  groups 
of  human  beings,  possessing  fundamental  physical  and  especially 
psychical  differences,  gradually  made  their  appearance  upon  the 
earth,  in  primitive  ages,  at  different  times  and  places,  and  under 
varied  influences.  This  theory  of  polygenism  ruins  at  one  stroke, 
too,  the  gentle  dream  of  those  who  maintain  that  all  individualities 
of  race  are  interchangeable,  and  that  to  argue  to  the  contrary  would 
be  in  defiance  of  the  "  Rights  of  Man  and  of  the  Citizen." 

From  polygenism  resulted  ethnical  aggregates  or  groups,  going 
back  to  exceedingly  remote  origins,  possessing  a  common  human 
foundation,  but  essentially  and  unalterably  different  in  a  multi- 
tude of  intellectual  conceptions,  notably  those  of  law  and  justice. 
Within  the  sphere  of  these  conceptions  they  borrow  nothing  durable 
from  one  another.  They  are  like  different  flora,  unlike,  and  evolv- 
ing from  original  types,  ever  in  close  relation  with  their  physiologi- 
cal and  cerebral  nature.  Probably  some  groups  have  already 
disappeared  ;  others  are  in  process  of  disappearing ;  for  example, 
the  American  Indian,  the  native  Australian,  and  the  Hyperborean. 

521 


§  2]  PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

There  are  but  a  small  number  of  the  latter ;  of  the  former  there 
are  millions. 

We  must  not  confuse  the  historical  races  (that  is  to  say,  the 
groups  which  have  been  formed  by  events)  with  the  great  natural 
races.  Xone  of  the  latter  is  founded  upon  accidental  circumstances. 
"  Res  nata,  non  facta  ! "  They  are  supernational.  They  exist  in  a 
parallel  manner  to  zoological  groups  and  with  the  same  persistence, 
subject  to  no  definite  term  of  existence,  and  undergoing  modifica- 
tions only  throughout  periods  of  time,  so  long  that  they  exceed  all 
conceivable  measurement  and  the  limits  within  which  our  activities 
are  exercised.  The  races  of  the  earth  are  as  unchangeable  as  the 
mountain  ranges. 

§  3.  Legal  Growth  Due  to  Racial  Forces.  —  Diversity  of  race  of 
necessity  influences  the  genesis  of  law  through  the  ages.  In  law, 
as  elsewhere,  we  must  know  and  search  the  heart  of  the  race,  feel  it 
beat,  listen  to  it ;  if  we  do  not,  our  labor  is  an  untruth,  a  super- 
ficiality, a  travesty.  Law,  said  Aristotle,  is  not  like  fire,  which 
burns  similarly  amongst  the  Persians  and  amongst  the  Greeks. 
In  its  varied  external  manifestations  law  is  an  ethnical  instinct,  a 
function  of  the  soul.  If,  as  we  may  believe,  this  instinct  acts  in 
us,  deluding  and  tricking  us  into  the  belief  that  we  enjoy  freedom 
of  the  will,  we  should  not  say:  "  I  think  juridically,"  but  "  It  is 
thinking  juridically  in  me,"  just  as  we  say,  "  It  is  raining,"  or,  "  It 
is  turning  up  cool  this  morning."  Each  of  us  must  resign  our- 
selves, perhaps,  to  the  admission  that  a  thought  comes  when  It 
wills  and  not  when  we  will ;  and  instead  of  enduring  this  fact 
regretfully,  we  should  be  happy  and  interested  in  it  as  in  one  of  the 
most  curious  of  all  phenomena.  We  do  not  inveigh  against  the 
orbits  of  the  planets  or  against  the  rhythmical  movement  of  the 
tides.  We  must  watch  the  flow  of  the  law  as  we  would  gaze  upon 
that  of  the  Nile. 

An  ethnic  group  creates  and  develops  its  law  in  the  same  manner 
as  it  grows.  "  The  unchanging  soul  of  the  race  weaves  its  own 
destiny,"  wrote  Lebon.  There  is  no  world-law;  there  is  only 
race-law.  The  absolute  internationalization  of  laic  is  a  phantasy. 
We  can  no  more  create  a  single  law  upon  the  earth  than  a  single 
language.  At  best  we  may  by  agreement  construct  an  artificiality, 
—  a  juridical  volapuk. 

Among  races,  properly  so  called,  the  law  differs,  sometimes  in 
important  institutions,  sometimes  in  details.  We  then  have  a 
difference  of  physiognomy.  To  appreciate  properly  the  truth  of 
this  statement,  we  must  not  limit  our  examination  to  juridical 

522 


CHAP.    XIV]  A    WORLD    COMMON    LAW  [§  5 

combinations  of  almost  inevitable  similarity,  such  as  sale  or  ex- 
change, but  consider,  for  example,  marriage,  property,  inheritance, 
and  also  penal,  public,  and  administrative  law.  When  peoples 
were  originating,  in  the  law  of  their  savage  state,  differences 
appeared  less  sensible,  racial  traits  were  less  marked  or  less  salient 
than  in  the  periods  of  expansion  where  everything  has  emerged 
into  clearly  modeled  relief. 

The  resemblances  between  laws  are  derived  from  the  action  of 
factors  other  than  racial,  and  from  our  common  human  foundation. 
Moreover,  the  "  structure  "  of  juridical  action  is  as  unalterable  as 
that  of  mathematics. 

§  4.  Historical  and  National  Races.  —  In  its  common  applica- 
tion we  use  the  word  "  race  "  in  a  restricted  sense  to  designate 
"peoples"  which  have  undoubtedly  the  same  origin,  but  to  which 
accidental  events  have  given  superficial  and  graduated  differences. 
Thus  Latins,  Germans,  and  Slavs  are  all  Aryans.  However,  we 
say,  commonly,  the  Slavic  race,  the  Germanic  race,  and  the  Latin 
race,  constructing  thereon  a  thousand  eulogistic  or  discrediting 
fancies.  Chauvinism  has  no  other  basis.  And  yet  these  are 
flowers  of  the  same  kind,  distinguishable  only  by  the  colors  of  their 
petals,  like  carnations,  growing  in  the  same  flower  garden.  We 
should  say  the  Latin  variety,  the  Slavic  variety,  or  the  Germanic 
variety  of  the  Aryan  race ;  or  similarly  the  Jewish  variety  of  the 
Semitic  race.     "  Res  facta,  non  nata  !  " 

If  it  is  intended  to  express  the  existence  among  these  groups  of 
certain  differences  which  have  become  fixed  in  the  course  of  time  by 
reason  of  dissimilarity  of  environment,  by  reason  of  upheavals, 
events,  and  governments,  there  is  no  objection.  Peoples  are  the 
products  of  history ;  races  are  the  products  of  nature.  But  it 
must  be  admitted  that  the  word  "  race  "  is  unfortunately  employed 
to  designate  a  "  simple  variety  "  of  a  single  ethnic  group.  The 
Arabs,  the  Chinese,  the  negroes,  are  not  mistaken ;  for  them,  all 
others  are  whites ;  "  Roumi  "  or  "  Nazrani  "  form  but  a  single 
unit. 

§  5.  Racial  Uniformity  is  Conceivable.  —  Among  peoples  who 
are,  with  regard  to  one  another,  merely  "  varieties  ",  for  example  the 
Europeo-Americans,  antipathies  exist  at  present,  of  course.  And 
they  are  frequently  violent,  —  even  in  spite  of  identity  of  civiliza- 
tion, as  attested  by  dress,  brotherhood  of  language  both  as  to  root 
and  syntax,  by  form  of  government,  military  organization,  trans- 
portation, postal  and  telegraph  service,  by  their  agricultural 
methods,  dwellings,  food,  drink,  forms  of  worship,  recreations, 

523 


§  5]  PART   III      UNIFICATION    OF    LAW  [Chap.  XIV 

arts,  literature,  press  —  everything,  yes,  nearly  everything  !  But 
the  differences  in  their  law  are  slight ;  they  would  seem  to  be  only 
temporary,  manifesting  a  characteristic  movement  towards 
"  juridical  unity",  except  for  the  inevitable  persistence  of  minor 
differences  and  of  the  mode  of  expression  fitted  to  the  genius  of  the 
languages.  And  this  would  seem  but  a  return  towards  the  uni- 
formity embracing  them  during  the  period  of  their  primitive  law, 
which  patient  and  interesting  research  shows  to  have  been  almost 
identical,  in  spite  of  enormous  geographical  distances  separating 
them.  Thus,  for  instance,  the  old  Irish  "  Brehon  "  or  law  is  found 
again  in  the  law  of  the  Ossetes  of  the  Caucasus  Mountains. 

Especially  with  regard  to  those  juridical  problems  of  contem- 
porary society  not  hemmed  about  by  tradition  and  race  (for  exam- 
ple, everything  pertaining  to  certain  forms  of  incorporeal  property 
—  patents  of  invention,  artistic  and  literary  copyright,  and  trade- 
marks) the  tendency  towards  unification  is  notable.  Not  only 
the  general  mechanism  of  these  legal  institutions  is  the  same,  but 
even  details  are  reproduced.  Conferences  meet  frequently  to 
bring  about  uniformity  in  those  matters  where  international  rela- 
tions are  most  frequent,  among  others  in  maritime  law.  The  great 
Codes  may  differ  in  expression,  but  their  fundamental  ideas  offer 
striking  analogies.  We  feel  that  in  the  profoundest  depths  of  their 
consciousness,  these  peoples,  springing  from  the  same  root,  have 
been  under  the  force  of  a  race  psychology,  common  and  invincible. 


524 


CHAP.    XIV]  A   WORLD   COMMON   LAW 


Chapter  XIV  (continued) 

II.    A  WORLD    COMMON    LAW   AS    NEEDFUL   AND    FEASIBLE 
WITHIN   LIMITED   FIELDS 

By  Ottfried  Nippold  1 

It  is  not  necessary  here  to  expound  at  length  the  arguments  for 
the  desirability  of  uniform  laws  in  the  field  of  international  private 
law.  That  there  are  those  who  oppose  it  on  principle,  cannot  be 
denied.  But  no  one  who  is  a  friend  of  international  law  and  of 
progress  in  international  intercourse,  or  is  convinced  of  the  con- 
stantly growing  solidarity  of  international  intercourse,  can  dispute 
the  desirability,  at  least,  of  international  uniformity  in  certain 
parts  of  the  law.  Nor  would  he  fail  to  insist  that  in  many  respects 
such  unification  is  not  merely  desirable  but  is  positively  demanded 
by  existing  conditions. 

And  the  really  weighty  objections  are  directed  not  so  much 
against  the  desirability  of  the  assimilation  of  the  law  as  against  its 
practicability.  The  objectors  are  not  enemies  of  uniformity,  but 
rather  sceptics.  They  admit  that  uniformity  in  this  or  that 
branch  of  law  would  be  excellent,  but  they  doubt  whether  it  can 
ever  be  obtained  in  practice.  So  far  as  the  objections  raised 
against  the  uniformity  of  laws  upon  such  grounds  require  to  be 
confuted,  such  confutation  can  be  made  in  the  most  practical 
manner  by  showing  that  for  many  branches  of  private  law  unifica- 
tion has  already  taken  place,  or  at  least  is  about  to  take  place. 
If  this  can  be  proven,  all  objections  to  the  general  principle  of  inter- 
national uniformity  of  laws  fall  to  the  ground.  After  that  it  would 
remain  only  to  remove  what  obstacles  actually  exist  in  regard  to 
the  various  particular  subjects  that  will  be  in  question. 

1  [Professor  of  International  and  Comparative  Law,  of  the  Law  of 
Carriers,  and  of  German  Civil  Law,  at  the  University  of  Berne  ;  formerly 
lecturer  at  the  University  of  Jena. 

This  essay  was  published  in  the  "Zeitsehrift  fur  Internationales  Privat- 
und  Strafrecht",  1894,  Vol.  IV.  The  outbreak  of  war  prevented  the 
author  from  revising  and  annotating  it  for  the  present  publication,  as  he 
had  intended. 

Certain  portions,  which  cover  in  historical  summary  the  course  of 
development  traced  in  the  foregoing  chapters,  have  here  been  omitted.  — ■ 
Ed.] 

525 


PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

For  instance  :  Against  unification  of  the  law  of  negotiable  instru- 
ments the  absence  of  a  precedent  was  objected.1  It  was  said  that 
it  was  an  unheard-of  novelty  to  make  international  treaties  be- 
tween sovereign  countries  on  matters  belonging  to  their  internal 
laws.  This  argument  is  met  triumphantly  by  what  has  actually 
occurred  in  practice ;  nor  even  during  the  last  few  years  only. 
International  treaties  containing  provisions  on  private  law  are  by 
no  means  something  new  ;  they  can  be  found  as  far  back  as  classical 
antiquity.2  Moreover,  it  is  a  fact  that  not  only  are  there  many 
rules  relating  to  private  law  contained  in  Oriental  capitulations, 
modern  treaties  of  commerce  and  navigation,  treaties  regarding 
the  marriage  of  aliens,  the  execution  of  judgments,  and  many  other 
subjects ;  but  that  there  are  even  treaties  dealing  exclusively 
with  matters  of  private  law,  or  of  legislation  regarding  private 
law.  Consequently  we  are  justified  in  asking  whether  such  joint 
treatment  of  matters  of  private  law  by  several  countries  does  not 
lead  to  international  uniformity  of  law  up  to  a  certain  degree. 

Such  proofs  of  the  practicability  of  international  agreements 
regarding  private  law,  drawn  from  international  intercourse  itself, 
surely  ought  to  silence  objections  against  the  principle,  and  to 
justify  many  of  the  wishes  and  hopes  of  the  friends  of  uniformity. 
This,  however,  is  true  only  if  those  friends  refrain  from  exaggera- 
tions, if  they  do  not  dream  of  a  Utopian  law,  covering  the  whole 
world,  but  concentrate  all  their  efforts  upon  the  unification  of  those 
subjects  that  are  really  fit  for  it.3 

It  is  easy  to  determine  "  a  priori  "  what  subject-matters  are 
most  fit  for  unification  and  therefore  most  likely  to  become  the 
objects  of  international  regulation.  Generally  speaking  there  is  no 
need,  and  consequently  no  likelihood,  of  unification  in  those 
branches  of  law  which  are  exclusively  or  preponderatingly  national. 
Other  branches,  however,  deal  with  relations  that  are  altogether,  or 
at  least  in  their  higher  stages  of  development,  the  result  of  inter- 
course among  nations.  In  the  field,  therefore,  of  that  "law  of  inter- 
course "  which  is  in  its  very  nature  international,  we  shall  have 
most  reason  to  expect  that  international  agreements  and  uniform 
rules  mav  be  found. 


1  Cf.  Cohn,  "Die  Anfange  eines  Weltverkehrsrechts",  in  "Drei  rechts- 
wissenschaftliche  Vortrage",  p.  109  [translated  as  Chapter  X  of  this 
Volume.  —  Ed. J. 

2  Cf.  Cohn,  loc.  cit.,  110;  also  his  "  Beitrage  zur  Lehre  vom  einheitlichen 
Weehselreeht  ",  p.  31,  and  the  works  there  cited. 

3  Cf.,  inter  alia:  Meili,  "Die  neuen  Aufgaben  der  modernen  Jurispru- 
denz",  p.  18. 

526 


CHAP.    XIV]  A    WORLD    COMMON    LAW 

As  a  matter  of  fact  this  is  just  what  we  do  find.  In  the  fields 
usually  covered  by  civil  codes,  there  is  no  very  urgent  need  for 
uniformity,1  and  we  should  look  in  vain  for  unifying  international 
rules. 

The  only  exception  is  in  the  rules  for  settling  the  so-called  con- 
flict of  laws  (or  private  international  law),  where  there  is  a  really 
urgent  need  of  uniform  provisions.2  Xow,  is  there  uniformity  in 
this  field  ?  Is  there  perhaps  uniformity  on  some  particular  sub- 
jects? Or  is  there,  at  least,  reason  to  expect  unification  within  a 
more  or  less  distant  future  ? 

There  is  no  lack  of  separate  treaties  between  various  countries 
regulating  cases  of  conflict  for  particular  subjects,  such  as  the  laws 
of  succession.  But  there  is  as  yet  no  general  convention  dealing 
with  private  international  law.  There  have  been,  however, 
numerous  preliminary  labors  looking  towards  such  a  convention. 
Not  only  are  there  a  number  of  private  proposals  for  "  codifying 
private  international  law  "  ; 3  but  the  various  governments  also 
have  already  made  attempts  at  unifying  either  the  whole  subject 
or  particular  portions  thereof.  There  are  draft-treaties  of  several 
South  American  countries  in  1878  and  again  in  1889.4  On  partic- 
ular subjects,  there  are  the  international  conferences  which  met 
at  the  Hague  in  1893, 1894,  [1900,  and  1904].  These  dealt  specifi- 
cally with  the  law  of  marriage,  of  guardianship,  forms  of  legal 
instruments,  succession,  bankruptcy,  and  methods  of  procedure, 
such  as  the  retaining  of  counsel,  service  of  papers,  filing  of  petitions, 
suing  "in  forma  pauperis",  security  for  costs  and  arrest  on  civil 
process.  A  number  of  the  most  important  problems  in  private 
international  law  have  thus  been  put  in  the  way  of  ultimate  uni- 
form solution. 

In  view  of  these  preliminary  labors  undertaken  by  the  govern- 
ments themselves,  it  would  not  seem  to  be  excessively  hopeful  if 
one  were  to  expect  in  future  a  joint  regulation  of  this  and  other 
subjects  of  private  international  law,  and  perhaps  even  to  antici- 
pate that  this  entire  province  of  law  is  on  the  way  towards  inter- 

1  To  what  extent  the  exigencies  of  traffic  require  uniformity,  see,  among 
others,  in  Zitelmann,  "Die  Moglichkeit  eines  Weltrechts",  p.  21. 

2  Cf.  Niemeyer,  "Das  in  Deutschland  geltende  internationale  Privat- 
recht",  p.  9. 

3  I  may  mention  Mommsen,  in:  " Civilistisches  Archiv  ",  61,  p.  197  et 
seq.;  A.  de  Donim-Petrushevecz,  "Precis  d'un  code  international."  Cf. 
recently:  Niemeyer,  "Vorschlage  und  Materialien  zur  Kodifikation  des 
internationalen  Privatrechts." 

4  Printed  in  Meili,  "Kodification  des  internationalen  Civil-  und  Han- 
delsrechts",  91  et  seq.  Cf.  also  Heck,  in  "Zeitschrift  fur  Internationales 
Privat-  und  Strafrecht ",  Vol.  1,  pp.  324,  477,  592  et  seq. 

527 


PART  III      UNIFICATION  OF  LAW  [Chap.  XIV 

national  uniformity.  By  the  fulfillment  of  this  hope,  a  want  that 
has  long  been  felt,  especially  in  daily  practice,  would  be  satisfied. 
We  are  not  aiming  too  high  if  we  take  as  a  goal  the  international 
regulation  of  all  matters  involving  the  conflict  of  laws. 

While  in  this  field  the  need  of  an  equalization  of  differences,  and 
of  general  uniformity,  is  particularly  urgent  for  practical  purposes, 
yet  the  same  need- is  to  be  found  in  hardly  less  degree  in  other 
branches  of  law.  No  doubt  a  need  exists  that  cannot  be  much 
longer  neglected,  for  assimilation  of  the  law  in  all  those  matters 
that  can  fairly  be  classed  as  "  law  of  intercourse  "  in  the  widest 
sense,  i.e.  wherever  either  international  institutions  exist  or  common 
substantial  interests  of  civilized  nations  can  be  traced.1  In 
many  such  cases,  unification  is  not  merely  desirable,  but  on  some 
points  is  absolutely  a  matter  of  necessity.2  But  if  we  ask  whether 
actual  conditions  respond  to  this  need,  or  whether  there  is  at  least 
a  prospect  thereof  in  the  future,  we  shall  see  that  the  first  question 
cannot  in  most  respects  be  answered  in  the  affirmative,  but  that 
there  should  be  a  decidedly  affirmative  answer  to  the  second.  In 
a  word,  we  are  in  the  very  midst  of  development ;  and  it  would  be 
wrong  to  overlook  the  considerable  beginnings  of  an  international 
law  of  intercourse  because  the  final  goal  is  still  lying  at  so  great  a 
distance.  To  abandon  hope  that  the  goal  will  some  day  be  reached 
would  be  an  excess  of  scepticism. 

Looking  first  at  commercial  law  in  the  narrower  sense,  we  find 
that  in  some  respects  uniformity  of  law  is  no  longer  in  the  prepara- 
tory stage  but  has  become  an  accomplished  fact.  Originally,  the 
goal  had  been  placed  too  high  by  planning  for  uniform  regulation 
of  the  entire  field.  Of  private  proposals  of  this  sort  I  may  mention 
that  of  the  Englishman,  Leone  Levi.  It  may  be  questionable,  of 
course,  whether  such  a  task  could  ever  be  accomplished,  or  whether 
there  is  a  demand  for  its  accomplishment.  At  any  rate,  there  can 
be  no  thought  for  the  present  of  a  general  treaty  covering  the  entire 
field.  Instead,  however,  we  can  find  several  attempts  at  satisfying 
the  need  for  assimilating  differences  in  particular  subjects  of  com- 
mercial law,  and  in  some  instances  there  has  been  some  success 
in  gaining  positive  results. 

The  Congress  of  Antwerp  in  1885,  followed  by  that  of  Brussels, 
in  1888,  will  always  remain  an  important  milestone  in  the  history 
of  the  movement  for  uniformity.  The  labors  of  these  meetings 
were  especially  in  the  fields  of  the  law  of  negotiable  instruments 

1  Meili,  "Die  internationalen  Unionen  ",  p.  76. 

2  Cf.  Zitelmann,  loc.  cit. 

528 


CHAP.    XIV]  A   WORLD    COMMON    LAW 

and  maritime  law.  It  is  merely  a  question  of  time  when  a  general 
international  treaty  will  be  made  in  this  field. 

Among  other  subjects  upon  which  general  conventions  have  been 
concluded,  all  of  them  involving  a  more  or  less  complete  unification 
of  the  law  regarding  the  subjects  they  deal  with,  must  be  noted  that 
of  copyright.  This  is  dealt  with  by  the  Berne  Convention  of 
September  8,  1886,  creating  a  union  for  the  protection  of  works  of 
literature  and  art.1  The  central  idea  of  the  Berne  Convention  is 
that  all  citizens  of  the  countries  belonging  to  the  Union  are  to  be 
on  an  equal  footing  with  the  citizens  of  all  the  other  countries 
that  are  members,  so  far  as  the  laws  of  each  country  for  protection 
of  copyright  go.2  The  principal  significance  of  this  is  that  each 
country  gives  protection  against  infringement  of  copyright  to  the 
citizens  of  all  other  member  countries,  but  only  according  to  its 
own  national  laws.  As  all  authors  belonging  to  other  member 
countries  must  be  treated  in  the  same  way  as  natives,  the  internal 
legislation  of  each  country  is  not  touched  at  all.  In  other  words, 
this  union  is  very  far  from  creating  a  uniform  law  throughout  its 
jurisdiction.  At  the  first  diplomatic  conference,  in  1884,  the  repre- 
sentative of  the  German  government  made  a  motion  to  work  for 
the  adoption  of  a  code  in  which  all  provisions  relating  to  the  protec- 
tion of  copyright  were  to  be  collected  and  to  be  made  obligatory, 
by  treaty,  on  all  members  of  the  Union  to  be  founded.  The  time, 
however,  for  a  uniform  regulation  of  the  whole  matter  by  inter- 
national agreement,  had  not  yet  come.  Such  an  agreement  was 
impossible  on  account  of  the  great  number  of  laws  in  the  various 
countries  and  the  numerous  separate  treaties  regarding  literary 
property,  all  of  which  were  the  outgrowth  of  more  or  less  strongly 
emphasized  national  peculiarities.  Moreover,  several  of  these 
national  statutes  had  but  just  been  revised  during  the  'eighties. 
As  a  consequence,  uniformity  was  attained  only  as  regards  com- 
paratively few  points  ;  or,  rather,  there  are  a  few  provisions  which 
must  be  conceded  as  a  minimum  to  all  member  countries,  even  if 
the  protection  given  to  home  authors  does  not  extend  so  far,  e.g. 
Section  4,  giving  a  definition  of  the  term  "  works  of  literature  and 
art ",  and  thus  delimiting  the  rights  to  be  protected  internationally. 

Another  branch  of  law  already  enjoying  regulation  by  a  general 
treaty  is  that  of  patents,  trade-marks,  and  allied  subjects.  The 
convention  of  March  20,   1883,3  deals  with  firm-names,  trade- 

1  Printed  in  "  Reiohsgesetzblatt  ",  1887,  p.  493. 

2  Cf.  §  2  of  the  Berne  Convention. 

3  Printed  in  Me.ili,  "Die  schweizerische  Gesetzgebung  iiber  den  Schutz 
der  Erfindungen,  Marken,  Muster  und  Modelle",  p.  81. 

529 


PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

marks,  patterns,  models,  and  patents.  This  treaty  is  of  no  less 
significance  for  the  question  we  are  considering  than  the  conven- 
tion for  the  protection  of  copyrights.  Here  also  we  cannot  yet 
speak  of  a  unification  of  the  law  governing  the  whole  subject,  but 
uniformity  has  been  obtained  on  certain  points.  Again,  the  prin- 
cipal importance  lies  in  the  fact  that  rights  of  this  kind  will  be 
recognized  as  such  and  protected  throughout  the  whole  extent  of 
the  union.  This  is  an  immense  step  forward,  and  this  advantage 
is  increased  by  the  fact  that  the  meaning  of  some  of  these  rights 
has  been  considerably  extended  by  the  convention.  With  all 
this,  it  is  still  a  long  way  towards  the  creation  of  an  international 
law  regarding  these  matters.  As  long  as  the  diversities  of  national 
laws  remain  as  great  as  they  now  are,  such  a  thing  is  not  to  be 
thought  of.  Yet  we  may  rejoice  at  what  has  already  been  gained. 
It  is  something  to  find  that  every  foreigner,  in  all  the  countries 
belonging  to  the  Union,  is  treated  in  the  same  manner  as  a  native 
in  the  protection  of  patents ;  or  to  be  assured  that  every  trade- 
mark, if  it  is  sufficient  under  domestic  law,  is  protected  in  all  mem- 
ber countries ;  or  to  see  that  priority  of  foreign  trade-marks  is 
either  recognized  outright,  or  at  least  for  three  or  four  months  until 
proper  legal  steps  can  be  taken  to  acquire  protection  under  domes- 
tic law.1 

By  the  side,  however,  of  these  results,  significant  as  they  are 
from  the  standpoint  of  international  private  law,  there  is  no  lack 
of  divergences  in  the  law  of  patents,  patterns,  and  trade-marks. 
This  is  in  part  the  reason  why  the  German  Empire  has  not,  until 
now,  become  a  party  to  the  Union.  It  is  precisely  these  existing 
difficulties  which  point  to  the  need  for  further  equalization  or  uni- 
fication such  as  each  successive  conference  is  striving  for.  The 
existence  of  an  international  union  is  a  guarantee  for  the  final 
success  of  these  endeavors.  The  fact  that  there  is  already  some 
international  protection  in  these  matters  itself  creates  a  tendency 
towards  unification.  Meili  2  was  entirely  right  in  saying  that  the 
prospect  of  the  future  growth  of  law  in  this  regard  was  bound  up 
with  the  fate  of  the  international  unions,  and  that  the  only  way  in 
which  these  unions  could  further  develop  was  to  raise  the  inter- 
national rules  finally  to  the  rank  of  domestic  principle,  in  the  slow 
progress  peculiar  to  historical  movements.     This,  he  says,  will 

1  §§  6  and  4  of  the  Convention.  Cf.  Simon,  "Die  internationale  Ein- 
tragung  von  Fabrik  und  Handelsmarken ",  in  "Zeitsehrift  fiir  gewerb- 
lichen  Rechtsschutz " ;  also  Field,  in  "Zeitschrift  fiir  Internationales 
Prival-  und  Strafrecht",  Vol.  4,  Heft  (i,  p.  562. 

-  Meili,  "Die  Internationalen  Unionen",  p.  73. 

530 


Chap.    XIV]  A   WORLD    COMMON   LAW 

happen  because  conflicts  will  be  unavoidable  between  the  inter- 
national rules  and  domestic  statutes,  and  because  a  double  rule, 
one  for  international  relations  and  one  for  domestic  dealing,  will 
in  the  long  run  be  impossible  for  citizens  of  the  same  country. 
That  is  why  the  endeavors  towards  unification  are  sure  to  be  suc- 
cessful. Unification  will  progress  in  the  course  of  time  as  regards 
industrial  intellectual  property  just  as  it  has  done  regarding  copy- 
right. We  or  our  children  will  some  day  see  in  force  an  inter- 
national trade-mark  law  as  well  as  an  international  patent  law. 

In  addition  to  these  unions  dealing  with  what  is  known  as  intel- 
lectual property,  there  are  also  conventions  regarding  the  means  of 
international  intercourse,  which  must  be  mentioned  here  as  relating 
to  private  international  law. 

The  oldest  of  these  is  the  international  Telegraph  treaty  of  July 
10,  1875,  as  revised  at  Berlin  in  1885.  On  that  occasion  the  law  of 
the  telephone  was  also  considered.  This  convention  did  great 
things  as  regards  technique  and  organization  of  the  telegraph 
business,  but  there  are  few  points  of  private  law  to  be  found  in  it. 
Among  the  latter,  however,  is  Section  1,  which  makes  it  an  inter- 
national (as  it  has  been  made  a  domestic)  principle  of  the  law  of 
common  carriers,  that  the  telegraph  office  must  accept  business 
from  all  applicants. 

The  next  treaty  to  be  mentioned  here  goes  considerably  further — 
the  international  Postal  convention  of  July  1,  1878,  as  revised  at 
Lisbon  in  the  year  1885.1  This  convention  contains  a  larger  num- 
ber of  private  law  rules,  involving  uniformity  in  the  subjects  on 
which  they  touch.  Thus,  the  convention  regulates  the  liability 
of  the  postal  administration  towards  the  public,2  by  recognizing 
(in  Section  66)  such  liability,  restricting  it,  however,  to  registered 
letters.3  The  convention  also  defines  the  rights  of  the  sender  by 
providing  (in  Section  56)  that  the  person  mailing  a  letter  may  re- 
claim it  or  change  its  address  as  long  as  it  has  not  yet  been  de- 
livered to  the  addressee.4 

Then  follows  the  International  Railway  Union.  This  notable 
convention,  which  has  the  greatest  importance  among  all  these 
forward  steps  in  international  agreement,  is  distinctly  different 
from  the  unions  heretofore  mentioned.     For  while  the  international 

1  "Reiehsgesetzblatt",  1879,  p.  83;   and  1886,  p.  82. 

2  Cf.  Meili,  "Die  Unionen",  p.  24. 

3  This  implies  that  no  international  liability  is  recognized  in  the  case 
of  unregistered  letters. 

4  However,  in  this  respect  uniformity  is  limited ;  a  number  of  the 
parties  to  the  treaty  are  excepted  from  this  provision,  according  to  §  5. 

531 


PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

telegraph  and  postal  treaties  contain  mostly  provisions  regarding 
tariffs  and  technical  matters,  the  international  railway  agreement 
of  October,  1890,1  creates  a  completely  uniform  law  regarding 
railway  freights  for  all  Europe.  By  equalizing  national  differences, 
by  following  the  best  examples  set  by  various  countries,  and  by 
complying  with  the  requirements  of  modern  traffic,  it  has  been 
possible  to  create  a  European  railway  code,  and  thus  to  subject 
one  of  the  most  important  branches  of  intercourse  between  the 
civilized  countries  of  Europe  to  uniform  rules.2  With  this  splen- 
did goal  attained,  it  would  be  superfluous  to  argue  further  as  to  the 
need  and  the  practicability  of  uniformity  in  this  subject.3  The 
field  covered  by  the  convention  is  very  strictly  circumscribed,  but 
within  these  limits  the  law  of  railways  is  almost  exhaustively 
treated.  Nearly  every  important  question  regarding  international 
transportation  of  merchandise  is  clearly  and  uniformly  treated 
by  rules  that  take  precedence  over  all  inconsistent  agreements 
between  railways  themselves.  Actual  uniform  and  international 
rules  are  established.  This  treaty  is  in  effect  a  complete  code  of 
international  railway  freight  law.  We  have  a  right,  therefore,  to 
call  this  subject  the  most  advanced  part  of  international  law. 
We  have  a  uniform,  world-wide  (or  at  least  Europe-wide)  railway 
law  fixed  by  treaty ;  and  this  is  indeed  the  most  advanced  step 
of  which  the  movement  towards  international  uniformity  of  law 
can  as  yet  boast. 

However,  the  international  legal  uniformity  thus  realized  has  a 
still  greater  significance.  If,  starting  from  this  fact,  we  try  to 
discern  the  future,  and  at  the  same  time  keep  our  eyes  on  the  inter- 
national movement  in  other  parts  of  the  field,  there  is  revealed  to 
us  (remote  though  it  be)  a  goal  that  could  not  appear  more  attrac- 
tive to  any  friend  of  international  law  who  keeps  his  ideals  high 
while  remembering  the  demands  of  common-sense.  For  these 
unions  we  have  described  have  a  tendency  to  grow.  Their  further 
development  (as  we  have  already  indicated)  will  be  in  the  direction 
both  of  greater  local  extension  and  of  closer  approximation  of  the 
various  national  laws  in  effect  within  their  membership.  Pre- 
sumably this  tendency  will  first  become  conspicuous  in  the  case  of 
railway  law,  which  already  enjoys  a  complete  international  code. 
The  existing  dualism  of  internal  and  external  law  will  disappear  in 

1  Printed  in  "Reichsgesetzblatt",  1892,  p.  793;  also  in  "Zeitschrift  fin- 
Internationales  Privat-  und  Strafrecht",  Vol.  3,  p.  200. 

2  Cf.  Rosenthal,  in  preface  to  "Internationales  Eisenbahnfrachtrecht." 

3  The  history  of  the  origin  of  the  Union  is  told  in  numerous  works.  I 
may  mention  those  by  Cohn,  Meili,  and  Rosenthal,  already  cited. 

532 


Chap.   XIV]  A  WORLD   COMMON  LAW 

time ;  for,  as  has  been  said  by  Meili,  "  a  considerable  incongruity 
between  domestic  and  international  provisions  will  not  be  tolerated 
permanently,  especially  where  the  foreigner  is  placed  in  a  better 
position  than  the  native.  It  is  a  natural  necessity  that  a  complete 
international  code  like  this  must  tend  to  become  the  domestic 
railway  law  of  all  the  countries  in  the  Union." 

It  is  already  apparent  that  these  words  of  his  describe  the  situa- 
tion correctly.  A  number  of  the  various  countries  have  already 
abolished  the  dual  system,  and  now  apply  the  law  governing  foreign 
traffic  to  the  domestic  commerce  also.  In  this  way  at  least  a 
partial  equalization  of  international  and  domestic  railway  freight 
law  has  already  become  an  accomplished  fact.  Instances  of  this 
are  the  Russian  railway  law  of  1885,  the  Italian  law  of  1885,  the 
Belgian  law  of  1891,  and  the  Swiss  law  of  1893.  The  law  of  Nether- 
lands and  of  Luxemburg  also  is  uniform  with  the  rules  of  the 
international  treaty.  France  is  engaged  now  in  bringing  about 
such  uniformity.  Germany  and  Austria  have  revised  their  traffic 
rules,  and,  in  1892,  accepted  most  of  the  international  rules  for 
their  domestic  freight  traffic  also.  There  is  a  prospect  also  that 
the  Balkan  States  will  revise  their  traffic  regulations  in  accordance 
with  the  principles  of  the  international  treaty.  Thus  a  uniform 
law  does,  as  a  matter  of  fact,  regulate  the  internal  as  well  as 
international  railway  freight  contracts  of  most  of  the  European 
states. 

In  other  directions,  likewise,  the  development  of  the  railway 
union  is  likely  to  proceed,  not  only  by  the  accession  of  additional 
countries,  but  by  extension  as  regards  the  subject  matters  of 
agreement.  Uniform  rules  for  passenger  traffic  and  baggage 
transportation  are  likely  to  be  made.  The  preliminary  work  for 
this  has  already  been  done,  so  that  there  is  the  best  prospect  for 
uniform  international  regulation  of  these  portions  of  railway  law 
also. 

However,  the  tendency  towards  further  growth  is  not  confined 
to  the  railway  union.  We  have  observed  the  same  thing  as 
regards  the  unions  for  intellectual  property,  literary,  artistic  and 
industrial.  Here  the  same  process  is  likely  to  go  forward,  and  the 
hope  of  complete  international  unification  is  not  preposterous. 
In  view  of  the  general  tendency  towards  unification  in  all  the 
fields  where  international  unions  exist,  we  should  give  emphatic 
welcome  to  the  existence  of  such  unions  if  for  no  reason  but  be- 
cause they  are  a  guarantee  of  the  future  realization  of  a  partial 
international  uniformity  of  law. 

533 


PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

Who  would  say  that  we  are  already  at  the  end  of  this  stage  of 
the  growth  of  law,  and  that  the  rise  of  further  unions  covering 
other  branches  of  the  "  law  of  intercourse  "  is  improbable?  And 
who  would  deny  to  the  various  labors  having  for  their  object  the 
unification  of  the  "  law  of  intercourse  "  the  probability  of  future 
accomplishment  of  their  aim?  Modern  international  life  proves 
the  contrary.  We  have  met  with  tendencies  towards  uniformity 
in  the  law  of  negotiable  instruments  in  maritime  law,  and  in 
many  branches  of  commercial  law,  such  as  guarantee  that  in 
other  matters  also  uniformity  will  some  day  be  accomplished. 
It  is  quite  likely  that  in  the  course  of  time  the  various 
countries  will  by  treaty  increase  the  number  of  legal  subjects 
uniformly  regulated  internationally.  For  all  these  subjects 
have  an  international  coloring  as  branches  of  the  "  law  of 
intercourse." 

One  must  not,  of  course,  indulge  in  illusions  regarding  the  time 
required  for  such  assimilation  of  law.  However,  if  we  admit  that 
there  is  some  prospect  of  attaining  the  goal  that  now  is  still  far 
distant,  when  all  the  subjects  mentioned  shall  be  uniformly  and 
internationally  regulated,  may  we  not  in  the  interval  apply  the 
lofty  name  of  international  law  of  intercourse,  or  "  world  law  of 
intercourse  "  to  those  portions  of  the  edifice  which  are  already 
visible  ? 

At  the  beginning  of  this  essay,  I  announced  myself  as  opposed  to 
any  excessively  vague  or  general  idea  of  world  law,  or  world-wide 
private  law.  This  idea  is  too  general,  because  it  is  liable  to  the 
suspicion  of  aiming  to  unify  into  a  dead  level  of  sameness  even 
those  parts  of  the  law  which  are  naturally  repugnant  thereto  and 
should  preserve  their  national  coloring.  We  should  always  bear 
in  mind  that  assimilation  has  certain  natural  limits.  No  less, 
however,  should  we  remember  that  there  is  a  natural  tendency 
towards  assimilation  wherever  we  deal  with  the  law  of  that  inter- 
course which  is  by  nature  international,  and  that  this  tendency  is 
actually  irresistible  wherever  the  economic  interests  of  world 
commerce  require  international  and  uniform  regulation.  For  this 
reason,  provided  the  aim  be  confined  to  those  subjects  illustrated 
by  the  inventory  just  taken,  we  consider  uniformity  of  law  not 
merely  desirable  but  practicable.  If  we  take  account  of  a  reason- 
ably large  period  of  time,  it  is  even  already  in  sight.  If  we  remain 
within  the  bounds  of  our  inventory,  it  is  by  no  means  fanciful  to 
speak  of  an  international  law  of  intercourse  as  already  perceptible 
and  in  course  of  development.     We  have  been  studying  the  actual 

534 


Chap.    XIV]  A   WORLD    COMMON   LAW 

phenomena  of  international  life,  and  it  is  they  that  have  encouraged 
our  vision  into  the  future.1 

And  the  conviction  is  bound  to  spread,  more  and  more  generally, 
that  the  creations  of  modern  international  life  with  which  we  have 
dealt  are  the  promising  beginnings  of  a  world-wide  law  of  inter- 
course. This  is  proven  by  the  endeavors  and  labors  of  many 
governments  and  associations,  and  no  less  by  the  interest  shown 
in  these  subjects  by  modern  legal  science.2 

In  closing  I  should  like  to  emphasize  another  matter  which  may 
also  throw  some  light  on  the  significance  of  the  nascent  uniformity 
of  international  private  law.  The  work  to  which  scholars  and 
governments  devote  themselves  so  zealously  is  and  must  be  a 
work  of  infinite  detail,  no  matter  how  grand  the  final  object  may  be. 
Some  may  doubt,  therefore,  whether  such  labor  is  worth  while. 
Yet  even  for  the  present  age  its  importance  is  far-reaching.  For 
if  it  is  to  create  a  possession  common  to  all,  the  steps  thereto  must 
also  be  taken  in  common.  To  labor  for  the  creation  of  an  inter- 
national law  of  intercourse  is  a  common  task  in  which  scholars  and 
statesmen  of  various  nations  join  hands,  and  in  the  course  of  which 
many  differences  are  bridged  over,  much  knowledge  is  gained,  many 
prejudices  are  overcome.  Such  continuous  labor  in  joint  endeavor 
not  only  promotes  the  growth  of  international  law,  but  also 
strengthens  the  sense  of  solidarity  of  the  interests  of  the  various 
nations.  Thus  the  arduous  detailed  labor  necessary  for  attaining 
the  great  goal  of  a  uniform  law  of  intercourse  is  at  the  same  time 
not  to  be  underestimated  as  an  instrument  in  the  interest  of  world 
peace. 

1  Incidentally  it  may  be  said,  however,  that  conditions  at  the  universities 
are  in  accord  with  this  but  little  or  not  at  all.  Unfortunately,  the  law 
schools  are  none  too  friendly  to  international  law,  and  the  universities  are 
partly  at  fault  if  this  phase  of  modern  legal  life  is  not  always  considered  as 
seriously  as  it  may  rightfully  claim.     See  Meili,  "  Unionen  ",  p.  77. 

2  Meili  especially  calls  attention  to  this  again  and  again  in  his  works, 
and  very  properly  so.     Cf.,  e.g.,  "Unionen  ",  pp.  57  et  seq. 


535 


PART   III      UNIFICATION    OF   LAW  [Chap.  XIV 


Chapter  XIV  (continued) 

III.     THE   INTERNATIONAL  ASSIMILATION   OF   LAW: 
ITS  NEEDS  AND   POSSIBILITIES   FROM   AN   AMERICAN 
STANDPOINT1 

By  John  H.  Wigmore  2 

A  notable  feature  of  contemporary  international  life  is  the  move- 
ment for  the  assimilation  or  unification  of  private  law  and  pro- 
cedure among  nations.  The  present  tremendous  conflict  of  arms 
has  only  suspended  temporarily  this  movement ;  for  its  causes  and 
agencies  are  permanent,  and  will  soon  again  resume  their  action. 

This  movement  can  be  traced  back  definitely  for  more  than  two 
generations.  It  first  became  a  conscious  aspiration  of  eminent 
leaders  at  the  time  of  the  earliest  International  Expositions,  in  the 
1850  s,  at  London  and  at  Paris.  It  now  possesses  a  considerable 
history,  and  the  literature  discussing  the  movement  has  grown  to 
some  size.3  The  scope  of  subjects  in  which  assimilation  is  poten- 
tially feasible  has  been  examined  in  the  foregoing  essays.  The 
various  methods  of  effecting  it  have  been  noted,  and  the  varying 
success  of  the  measures  already  adopted,  as  well  as  the  causes 
for  the  movement  and  the  need  for  its  acceleration  and  extension. 

At  one  extreme  stand  enthusiasts,  like  Leone  Levi,  of  England, 
and  Ivan  Perich,  of  Serbia,  who  believe  in  its  unlimited  possibilities 
and  desirability.  At  the  other  extreme  are  skeptics  like  Picard,  of 
Belgium,  who  do  not  believe  in  its  intrinsic  desirability  as  a  general 
aim.  In  the  middle  stand  some  cautious  practical  observers, 
like  Xippold  of  Switzerland,  Baldwin  of  the  United  States,  and 
Ripert  of  France,  who  sympathize  with  the  efforts  made  and  mak- 
ing, but  realize  that  such  a  movement  must  rest  on  a  solid  basis  of 
harmonized  custom,  that  it  cannot  advance  faster  than  the  need 
for  it,  and  that  it  involves  practical  difficulties  which  can  be 

1  [An  Address  delivered  before  the  Second  Pan-American  Scientific 
Congress,  at  Washington,  January  4,  1916;  first  printed  in  the  "Illinois 
Law  Review",  X,  385  (1916).  —  Ed.] 

2  [Dean  of  the  Faculty  of  Law,  Northwestern  University,  Chicago ; 
Chairman  of  the  Editorial  Committee  for  this  Series;  Illinois  State 
Commissioner  for  Uniformity  of  Legislation.  —  Ed.] 

3  To  the  foregoing  essays  should  be  added  those  cited  in  the  Editorial 
Preface  to  this  volume. 

536 


Chap.    XIV]  A   WORLD   COMMON   LAW 

effectually  surmounted  only  after  elaborate  detailed  studies  and 
repeated  conferences  of  experts  and  national  representatives. 

The  time  has  now  fairly  come  for  America  to  realize  that  there  is 
such  a  marked  and  general  movement,  progressing  on  a  large  scale, 
and  that  it  must  be  studied  as  a  whole.  And  yet  no  writer  hitherto 
appears  to  have  considered  it,  as  a  whole,  in  its  possibilities  and 
needs  for  the  future,  from  an  American  standpoint.  It  is  the  pur- 
pose of  the  present  essay  to  consider  it  from  that  standpoint. 

The  subject  will  be  treated  under  three  main  heads : 

What  is  in  general  the  need  or  the  utility  of  an  international 
assimilation  or  unification  of  law  ? 

What  are  the  methods  by  which  experience  shows  that  it  may 
be  achieved  ? 

What  is  the  part  to  be  played  in  this  movement  by  the  United 
States  of  America  ? 

Reflecting  on  the  history  of  the  movement  for  unification  of  law 
as  it  has  grown  during  the  last  two  generations  and  more,  analyzing 
its  revelations  of  success  and  of  failure,  and  estimating  its  lessons  in 
the  light  of  the  needs  and  the  tendencies  of  the  times,  the  following 
conclusions  may  be  ventured  : 

1.  International  unification  of  law,  as  an  end  in  itself,  is  not 
desirable. 

International  unification  of  law,  or  concert  in  modes  of  justice, 
is  desirable,  so  far  as  it  is  a  means  for  removing  inconveniences  and 
other  obstacles  actually  experienced  in  commerce  and  general  inter- 
course and  due  to  divergencies  of  national  law  or  to  abuses  not 
reachable  without  international  concert. 

2.  The  methods  of  unification  and  of  concert  must  vary,  ac- 
cording to  what  is  most  feasible  in  each  separate  part  of  the  field. 

3.  The  federal  organization  of  the  United  States  is  both  useful 
and  detrimental  in  this  enterprise  ;  useful,  in  that  its  internal  oper- 
ation presents  valuable  analogies  for  world  legislation ;  and  detri- 
mental, in  that  its  external  operation  renders  this  nation  as  yet 
incapable  of  doing  its  just  share  to  advance  the  good  cause. 

These  conclusions  will  now  be  briefly  explained. 

1.  International  unification  of  law,  as  an  end  in  itself,  is  not 
desirable.  For  it  flies  in  the  face  of  that  perpetual  biological  truth, 
the  differentiation  of  species.  It  aims  to  suppress  that  variety  of 
life  which  intrinsically  must  express  itself  in  a  rich  and  healthy 
variety  of  custom  and  law.  Life  without  liberty  is  valueless,  and 
liberty  signifies  individuality  and  originality,  for  nations  as  for  men. 
The  eloquent  exposition  of  this  truth  by  the  distinguished  Belgian 

537 


PART   III      UNIFICATION    OF    LAW  [Chap.  XIV 

jurists,1  leaves  nothing  to  be  added.  A  general  unification  of  law 
"  could  signify  nothing  more  than  artificiality,  despotism,  and 
fragility." 

The  world  is  to-day  witnessing  the  close  of  a  brutal,  bloody,  and 
needless  struggle,  due  to  the  conceited  ambition  of  one  people  to 
impose  its  own  standards  upon  other  peoples  —  a  childish,  crude 
conceit  in  the  superiority  of  its  own  "culture",  and  a  ruthless 
ambition  to  force  others  to  conform.  Each  nation  has  and  always 
will  have,  its  own  conceit ;  there  is  a  self-conceit  of  London,  of 
Paris,  of  Madrid,  of  New  York,  and  of  the  peoples  of  those  countries. 
But  hitherto  that  conceit  has  been  satisfied  by  each  country  keep- 
ing to  its  own  ways,  in  proud  and  harmless  self-satisfaction.  We 
have  now  witnessed  for  the  first  time  the  effects  of  an  aggressive 
conceit,  which  reaches  out  to  impose  its  own  standards  on  others. 
And  the  world  does  not  and  will  not  endure  this  kind  of  conceit, 
nor  this  kind  of  unification.  Live  and  let  live,  is  the  beneficent 
law  of  life. 

A  true  unification  must  come  by  abnegation,  not  by  imposition. 
The  history  of  the  successful  parts  of  this  movement  shows  that 
harmony  has  been  reached  only  when  each  nation  gave  up  some 
part  of  its  own  cherished  customs,  as  a  contribution  necessary  to 
final  harmony. 

Such  a  sacrifice  is  demandable  only  for  the  sake  of  overcoming 
some  common  danger  or  inconvenience.  It  is  not  demandable  for 
the  sake  of  unification  alone  —  which  is  a  mere  abstraction,  profit- 
able to  no  one.  Thus,  plainly,  a  unification,  for  the  sake  of  unifica- 
tion in  itself,  can  only  be  the  repulsive  one  resulting  from  the 
coercive  imposition  of  one  nation's  standards  upon  others.  And 
the  only  sound  and  desirable  unification  is  that  which  arises  from 
the  voluntary  co-operation  of  nations,  large  and  small,  each  sacri- 
ficing some  valued  customs  of  its  own,  for  the  sake  of  avoiding  some 
disadvantage  and  thus  of  enhancing  the  common  welfare. 

This  enables  us  to  shape  an  acceptable  proposition : 

International  unification  of  laic,  or  concert  in  modes  of  justice, 
u  desirable,  so  far  as  it  provides  a  means  for  removing  inconveniences 
and  other  obstacles,  actually  experienced,  in  commerce  and  general 
intercourse,  and  due  to  divergencies  of  national  law  or  to  abuses  of 
individuals  not  reachable  without  international  concert. 

The  history  of  all  of  the  vigorous  movements  for  uniformity 

illustrates  this  truth.     In  the  international  fields  of  commercial 

paper,  of  railway  freight  traffic,  of  postal  service,  of  maritime  freight 

1  Chap.  XIV,  part.  I,  ante. 

538 


Chap.    XIV]  A   WORLD    COMMON   LAW 

contracts,  of  navigation,  of  trade-marks,  patents,  and  copyrights, 
the  inconveniences  and  obstacles  caused  by  divergent  laws  became 
intolerable,  and  forced  all  parties  to  co-operate  to  avoid  them. 
In  sanitation,  in  the  slave-trade,  in  the  opium  trade,  in  bankruptcy, 
in  extradition,  the  abuses  feasible  for  individuals  practicing  dan- 
gerous or  wrongful  acts  in  the  immunity  of  a  foreign  jurisdiction 
created  intolerable  conditions,  which  naturally  called  for  a  concert 
of  repressive  action. 

Whenever,  therefore,  conditions  of  either  sort  exist,  international 
unification  of  law  or  concert  in  modes  of  justice  becomes  desirable. 

Are  there  any  such  conditions  remaining,  in  any  fields  of  custom, 
law,  or  justice  ?     Undoubtedly. 

To  catalogue  them,  here,  would  be  needless.  Many  of  them, 
indeed,  are  so  obvious  that  they  clamor  unceasingly  for  attention. 
Our  slowness  in  girding  up  for  action  to  remedy  them  should  give 
us  shame.  And  I  would  not  utter  a  word  to  hold  back  any  such 
efforts.  I  would  only  have  it  understood  that  our  true  aim  and 
guiding  principle  should  be,  not  to  chase  the  "  ignis  fatuus  "  of 
unification  as  an  end  in  itself,  but  to  toil  assiduously  for  unification 
or  concert  as  a  necessary  means  to  remove  specific  existing  obstacles 
to  convenience  and  safety  in  commerce  and  general  intercourse. 

And  this  brings  me  to  my  second  proposition,  which  is  the  answer 
to  the  question,  What  are  the  available  methods  for  securing  this 
unification  and  concert  ? 

2.  The  methods  of  unification  and  of  concert -must  vary,  according 
to  ivhat  is  most  feasible  in  each  separate  part  of  the  field. 

Here,  emphatically,  history  becomes  our  best  teacher. 

The  methods  available  are  four  in  number : 

a.  Uniform  usage  of  individual  parties  or  groups,  by  volun- 
tary agreement ;  b.  Uniform  national  law,  by  voluntary  national 
legislation ;  c.  Unified  international  law  and  administration ; 
d.  Uniform  national  rules  for  conflicts  of  laws. 

a.  Uniform  usage  of  individual  parties  or  groups  by  voluntary 
agreement.  This  method  is  the  one  most  solid  in  its  foundations ; 
because  all  laws  are  based  on  interests,  and  represent  the  result  of  a 
rational  struggle  in  which  one  interest  dominates  for  the  time  over 
another  (as  Bagehot  and  Ihering  long  ago  pointed  out)  ;  and  if  this 
struggle  between  interests  can  be  brought  to  an  equilibrium  by  di- 
rect concord  of  the  very  representatives  of  those  interests,  the 
adjustment  is  the  more  likely  to  be  satisfactory  and  permanent. 

On  the  other  hand,  such  an  adjustment  lacks  legislative  sanc- 
tion, and  therefore  the  state's  coercion  of  an  obstinate  minority  is 

539 


PART   III      UNIFICATION   OF   LAW  [Chap.  XIV 

impossible ;  and  this  is  likely  sometimes  to  be  fatal.  But  now- 
adays the  organization  of  these  interests  themselves  —  the  trading, 
the  manufacturing,  and  the  professional  associations  —  is  growing 
so  powerful  that  an  economic  coercion  is  often  possible,  and  is  then 
as  effective  as  a  state  coercion. 

The  only  real  danger  in  this  method  arises  when  the  organized 
interests  themselves  adopt  their  uniform  practice  which  is  in  dis- 
regard and  detriment  of  outside  interests,  i.e.,  of  the  public  in 
general. 

The  feasibility  of  this  method,  and  the  extent  to  which  it  has 
actually  come  to  be  employed,  would  perhaps  be  surprising  to  those 
who  have  not  studied  the  history  of  the  facts.  The  most  notable 
example  of  it  is  the  York-Antwerp  Rules  for  Maritime  General 
Average,  which  came  into  use  by  voluntary  practice  in  the  con- 
tracts of  freighters,  after  a  generation  of  fruitless  attempts  to  agree 
upon  an  international  treaty.1  To-day  these  rules  are  universally 
observed,  without  apparently  having  the  legislative  support  of  a 
single  nation. 

This  method  of  unification  is  the  one  most  natural  to  the  Anglo- 
American  principle  of  individual  liberty  and  self-control.  It  has 
almost  unlimited  possibilities  now  awaiting  (and  demanding)  its 
employment.  What  is  needed  is  simply  more  self-sacrifice  among 
the  interests  concerned  (i.e.,  more  enlightened  self-interest),  and  a 
few  leaders  to  devote  themselves  to  the  cause.2 

b.  Uniform  national  law,  by  voluntary  national  legislation. 
Hitherto  this  has  been  the  method  most  obvious  and  most  thought 
of.  Its  successes  have  been  great,  as  the  history  of  the  various 
fields  exhibits.     But  its  failures  have  also  been  notable. 

A  main  reason  for  the  failures  seems  to  have  been  the  intel- 
lectual gap  between  the  international  drafting  bodies  and  the 
national  legislative  bodies.  The  former  are  usually  experts  in  the 
subject,  and  they  have  had  the  benefit  of  the  debates  of  the  con- 
ferences ;  so  that  they  fully  appreciate  the  necessity  of  the  sacrifices 
made  for  international  harmony.  The  latter  are  not  experts  ;  they 
are  not  keenly  alive  to  the-  necessity  of  compromise ;  they  are 
alarmed  by  the  "  ex  parte  "  arguments  of  the  defeated  interests; 
they  give  no  hearing  to  the  international  delegates ;  the  subject  is 
crowded  aside  in  their  minds  by  the  pressure  of  domestic  legislative 

1  Cohn,  ante,  Chap.  X. 

2  "Individual  effort  has  done  more  to  spread  the  vogue  of  these  rules 
than  all  the  reports  of  official  commissions  to  their  various  governments  ", 
(Bousquet,  1900,  "Commentairo  pratique  des  Regies  d'York  et  d'Anvers", 
p.  25). 

540 


CHAP.    XIV]  A   WORLD    COMMON   LAW 

problems.  They  proceed  to  sanction  the  international  draft  only 
when  the  subject  is  of  small  scope  and  uncontroverted  in  its  pro- 
posals, or  when  the  national  delegates  to  the  international  con- 
ference happen  to  be  men  of  political  prestige  who  command  the 
confidence  of  the  respective  national  legislators. 

Another  shortcoming  in  this  method  1  is  that  a  status  of  legisla- 
tive rest  is  never  perfectly  attained  at  any  time.  Either  the  next 
international  conference  makes  new  alterations  and  additions, 
which  would  require  new  action  by  many  legislatures  before  uni- 
formity is  restored ;  or  the  national  courts  soon  begin  to  vary  in 
their  interpretation,  and  the  uniformity  ceases  in  fact  to  that  extent. 

The  defects  in  this  method  are  inherent.  Nothing  short  of  an 
international  legislative  body,  or  a  series  of  them,  each  with  powers 
over  a  special  subject,  would  remove  these  defects. 

Meanwhile,  however,  two  expedients  would  contribute  much  to 
practical  improvements :  (1)  Let  the  national  delegation  to  the 
international  conference  include  invariably  one  or  more  members  of 
each  of  the  two  national  legislative  Houses.  Thus  would  be  as- 
sured a  greater  probability  of  the  national  acceptance  of  the  interna- 
tional draft.  This  expedient  has  often  been  employed  by  Conti- 
nental states ;  and  its  employment  by  the  United  States  for  the 
conference  on  Safety  at  Sea,  in  1913,  helped  to  the  subsequent  suc- 
cessful result  in  that  case.  (2)  After  an  international  draft  has 
been  nationally  accepted  in  uniform  legislation,  let  the  national 
Supreme  Courts,  by  delegation,  form  a  voluntary  conference  for 
periodical  meeting,  to  secure  uniformity  of  interpretation.  The 
divergences  of  interpretation  are  largely  due,  not  to  deliberate 
difference  of  conviction,  but  to  inadvertence  and  to  lack  of  a  mutual 
understanding.  This  expedient  has  apparently  never  yet  been 
employed ;   but  it  is  feasible  and  promising. 

c.  Unified  international  law  and  administration.  This  method 
has,  of  course,  thus  far  not  been  employed  in  theory  ;  because  it  pre- 
supposes an  international  legislative  body  having  inherent  and  con- 
tinuous powers.  And,  hitherto,  every  such  enterprise  has  been 
based  on  at  least  an  initial  legislative  assent  by  each  national  legis- 
lature. 

But,  practically,  this  method  is  in  force  in  a  few  fields  in  which 
the  administrative  element  is  the  most  important  one  for  uniformity 
of  operation.     The  Continental  Railway  Freight  Union  and  the 

1  Pointed  out  above,  Chap.  XI,  by  Ripert,  and  for  the  United  States,  in 
its  domestic  experience,  by  Henning,  in  "Pennsylvania  Law  Review", 
IX,  471,  532  ("Is  the  Negotiable  Instruments  Law  Producing  Uniformity 
in  the  Law  Merchant?"). 

541 


PART   III      UNIFICATION    OF    LAW  [Chap.  XIV 

International  Postal  Union  are  signal  examples.  And  there  remain 
other  important  fields  in  which  it  seems  specially  appropriate  but 
has  not  yet  been  tried  —  for  example,  the  criminal  police,  both 
detective  and  extraditional ;  the  time  is  ripe  for  an  international 
criminal  bureau. 

The  monograph  of  Ambassador  Reinsch  l  is  sufficient  demon- 
stration of  the  beneficent  possibilities  of  this  method.2  But  what  I 
desire  here  to  emphasize  is  the  secret  of  its  success,  namely,  the  pro- 
fessional expert  character  of  its  drafting  conferences  and  its  admin- 
istrators. 

And  this,  we  may  be  assured,  is  to  be  the  most  successful  of  the 
methods  of  the  future.  The  national  Legislatures  are  not  com- 
posed of  professional  experts  in  these  special  subjects  demanding 
international  regulation.  And  the  diplomatic  representatives  of 
the  Foreign  Offices  are  no  less  unqualified  in  those  fields.  Both 
are  unfitted  to  frame  such  legislation.  The  professional  expert, 
because  he  knows  the  professional  details,  is  by  his  self-interest  in 
the  subject  able  to  judge  responsibly  for  himself,  and  for  others,  tvhat 
concessions  can  and  ought  to  be  made  to  secure  international  har- 
mony. Let  the  railway  men  be  the  delegates  for  railway  matters, 
the  postal  men  for  postal  matters,  the  bankers,  for  commercial 
paper,  and  so  on.  Let  lawyers  be  joined  with  them,  as  guides,  and 
let  diplomats  be  kept  in  touch  with  them,  to  guard  general  interests. 
But  let  the  professional  expert  be  primarily  the  international 
legislator.  The  process  of  growth  in  international  legislation  is  to 
consist  in  the  formation  of  successive  special  legislatures,  created  ad 
hoc  for  each  special  subject. 

The  truth  is  that  we  are  yet  crouching  too  closely  under  the 
shadow  of  the  tradition  of  the  Congress  of  Vienna  and  the  Congress 
of  Paris.  Those  traditions  are  a  remnant  of  the  bygone  days  of  the 
personal  rule  of  the  sovereign.  They  assume  that  all  international 
treaty  legislation  must  emanate  from  the  Foreign  Office  and  the 
State  Department ;  and  that  their  personnel  is  therefore  to  be 
primarily  diplomatic.  This  is  now  an  anachronism.  The  Foreign 
Office  and  the  State  Department  should  be  content  to  retire  to  the 
role  of  a  channel  of  communication  and  a  record  office,  in  these 
matters.3  The  true  international  legislators  must  be,  and  are  going 
to  be,  the  professional  experts} 

1  Ante,  Chap.  XII. 

2  See  also  "La  Vie  Internationale",  ed.  Combes  de  Lestrade,  Paris,  1911. 

3  See  the  radical  proposal  of  Mr.  August  Schwan,  in  the  "Independent  ", 
for  March,  1915 ;   he  would  abolish  all  foreign  offices. 

4  A  related  movement,  based  on  the  same  causes,  viz. :    the  necessary 

542 


Chap.    XIV]  A   WORLD    COMMON   LAW 

This  is  the  lesson  of  the  demonstrated  success  of  the  Railway 
Union  and  the  Postal  Union,  and  of  the  partial  success  of  many 
other  and  more  recent  unification  movements  in  various  special 
fields.  We  must  take  this  lesson  to  heart.  It  requires  a  break 
with  tradition.  But  that  break  has  already  been  implicitly  made 
in  the  fields  mentioned  ;  and  it  requires  now  only  to  be  frankly  and 
formally  acknowledged. 

d.  Uniform  national  rules  for  conflict  of  laws.  This  method  is 
not  different  from  the  foregoing  two  in  its  machinery;  for  it  re- 
quires either  voluntary  national  legislation  or  a  supranational  legis- 
lation. But  it  differs  in  its  subject ;  for  the  scope  of  its  contents  is 
not  the  entire  mass  of  any  one  part  of  the  substantive  law,  but 
merely  the  rules  for  solving  conflicts.  Hence  it  does  not  call  for 
permanent  and  entire  sacrifices  of  parts  of  the  national  substantive 
law  of  the  subjects,  but  only  of  the  law  as  applied  in  the  limited 
number  of  international  transactions.  This  minimizes  the  obstacles 
due  to  national  legislative  prejudice  and  to  individual  or  group 
interests.  Thus  it  materially  affects  the  ease  and  success  with 
which  one  or  the  other  of  the  foregoing  two  methods  may  be 
employed. 

Hitherto,  its  fields  of  success  in  international  affairs  have  been 
those  of  marriage,  divorce,  succession,  and  judicial  procedure.  And 
these  subjects  also  show  us  that  its  feasible  scope  will  always  be  a 
small  one,  relatively  speaking.  For,  of  all  nationals  who  marry  or 
die  or  go  to  law,  the  number  whose  affairs  give  rise  to  conflicts  of 
laws  is  only  a  minute  percentage.  Hence,  a  change  of  law  for  this 
class  of  cases  does  not  reach  national  prejudices  or  interests  con- 
sciously on  a  large  scale.  But  in  almost  all  matters  of  commercial 
law  the  percentage  of  transactions  affected  with  an  international 
element  is  so  much  larger,  and  the  groups  of  persons  affected  are  so 
well  organized  and  so  keenly  alive  to  the  protection  of  their  tradi- 
tions and  their  interests,  that  this  method  encounters  almost  or 
quite  the  same  obstacles  as  do  the  foregoing  two.  And  indeed  the 
history  of  the  subject  shows  us  that  it  has  seldom  been  successful,  or 
even  attempted,  in  the  field  of  commercial  law.     The  Railway 

incompetence  of  the  casual  legislator  in  special  fields,  is  already  gaining 
headway  in  several  of  the  United  States.  It  asks  for  a  small  legislative 
body  in  continuous  session,  who  thus  become  professional  experts.  See  the 
following  documents :  Kansas  Stale  Library,  Legislative  Reference  Depart- 
ment, Bulletin  No.  1,  Jan.,  1914,  "Legislative  Systems";  Nebraska  Legis- 
lative Reference  Bureau  (A.  E.  Sheldon,  Director),  Bulletin  No.  4,  May  15, 
1914,  "Reform  of  Legislative  Procedure"  ;  A.  Lawrence  Lowell,  "Expert 
Administration  in  Popular  Government  ",  "  Amer.  Political  Science  Rev.", 
VIII,  45,  and  other  articles  in  the  same  volume. 

543 


PART   III      UNIFICATION    OF   LAW  [Chap.  XIV 

Freight  Union  is  perhaps  the  most  notable  exception  to  this  general 
fact ;   and  the  International  Maritime  Committee  and  the  Latin- 
American  Congresses  show  other  minor  exceptions. 
Such  are  the  lessons  of  history  as  to  method. 

3.  It  remains  to  notice  the  share  of  the  United  States  of  America 
in  the  future  of  the  movement. 

I  conceive  that  we  may  here  see  two  important  truths  : 

The  federal  organization  of  the  United  States  is  both  useful  and 
detrimental  in  such  an  enterprise;  (a)  useful,  in  that  its  internal  opera- 
tion presents  valuable  analogies  for  world-legislation;  (b)  detri- 
mental, in  that  its  external  operation  renders  this  nation  incapable  of 
doing  its  just  share  to  advance  the  good  cause. 

(a)  Not  many  persons  seem  here  to  reflect  that  these  United 
•States  are  now,  and  have  for  a  generation  been,  in  much  the  same 
status,  towards  each  other,  as  the  world-states  are  towards  inter- 
national legislation  (particularly  the  European  states  and  the  Latin- 
American  states,  among  themselves).  The  federal  government,  at 
the  beginning,  was  given  a  limited  number  of  specific  fields  for 
legislation,  the  individual  States  reserving  the  remainder.  These 
limited  federal  powers  sufficed  amply  for  three  generations,  espe- 
cially by  judicial  interpretation  of  the  interstate  commerce  power. 
But  during  the  last  generation,  the  vastly  increasing  complexity  of 
interstate  transactions  has  gone  far  beyond  the  scope  of  federal 
powers  of  regulation.  Interstate  incorporation,  commercial  com- 
binations, divorce,  insurance,  these  are  but  a  few  of  the  well-known 
instances.  Thus,  our  national  impotence  under  the  constitution 
is  parallel  to  the  international  impotence  for  lack  of  a  supra- 
national legislature. 

We  have  been  forced,  in  the  United  States,  to  seek  other  methods 
of  securing  that  national  harmony  of  practice  which  seems  to  be 
desirable  in  many  fields.  One  method  has  been  that  of  uniform 
trade  practice  by  voluntary  private  or  group  agreement.  Another 
method  has  been  that  of  uniform  State  law  by  voluntary  State 
legislation.1 

1  The  writer  has  had  the  privilege,  for  eight  years  past,  of  being  a  mem- 
ber of  the  Illinois  Stale  Commission  on  Uniformity  of  Legislation.  These 
several  Slate  eom missions  meet  annually  in  National  Conference,  and  the 
Conference's  drafts  are  then  transmitted  to  the  several  State  legislatures 
for  adoption.  The  achievements  of  t  he  ( Jonferenee  during  the  last  twenty- 
five  years  are  described  in  the  "Illinois  Law  Review",  1914,  VIII,  518, 
by  Nathan  William  MacChesney,  Chairman  of  the  Illinois  Commission, 
former  President  of  the  Illinois  State  Bar  Association.  The  Proceedings 
of  the  National  ('(inference  are  published  annually  in  the  Proceedings 
of  the  American  Bar  Association. 

544 


CHAP.    XIV]  A    WORLD    COMMON    LAW 

Each  of  these  methods  has  exhibited  its  respective  shortcomings 
and  advantages.  I  do  not  desire  in  this  place  to  describe  the 
United  States'  internal  problems  in  this  field  ;  but  only  to  empha- 
size the  fact  that  the  problem  of  uniformity  of  law  between  States, 
in  its  motives,  its  methods,  and  its  results,  is  for  the  United  States 
a  problem  largely  analogous  to  that  of  international  legislation  for 
the  world-states ;  and  that  the  United  States  situation  deserves 
more  study  than  it  has  received  from  jurists  in  other  countries. 

(b)  On  the  other  hand,  the  federal  organization  of  the  United 
States,  in  its  external  relation  to  other  world-states,  offers  an  almost 
gloomy  prospect  for  achieving  any  aspirations  to  take  its  honorable 
share  in  the  assimilation  of  world-law.  Of  federal  powers  to 
legislate  for  internal  affairs,  the  chief  one  germane  to  the  purpose  is 
the  power  over  interstate  and  foreign  commerce.  But  this  power 
stops  at  each  State  line ;  it  cannot  legislate  for  intrastate  commerce ; 
hence  it  cannot  give  to  a  unified  international  code  any  force  for 
intrastate  commercial  transactions.  Over  marriage,  divorce  and 
succession,  there  is  no  federal  power  at  all ;  and  the  intolerable 
tangle  in  that  field  is  notorious.  Over  judicial  judgments  and 
other  procedural  expedients  of  justice  (except  bankruptcy  and 
extradition),  it  has  no  power  to  unify  intrastate  action. 

In  short,  it  is  crippled  against  effective  co-operation  with  other 
world-states,  whether  by  the  second  or  by  the  third  or  by  the 
fourth  of  the  methods  above  outlined.  At  the  Hague  Conference 
on  Bills  of  Exchange,  in  1910,  the  delegate  of  the  United  States  1 
was  obliged  to  announce,2  as  a  special  obstacle  to  its  effective  co- 
operation, that  "  the  federal  government  has  no  authority  to 
legislate  regarding  bills  of  exchange,  whether  foreign  or  domestic." 
In  view  of  the  plenipotentiary  status  which  the  United  States  ought 
to  occupy  in  a  congress  of  nations,  this  necessary  avowal  is  almost 
humiliating  to  contemplate.  For  it  must  be  made  to  the  assembled 
world  on  almost  every  such  occasion. 

And  it  is  no  less  alarming  in  results  than  disagreeable  to  the 
imagination.  The  only  alternative  method  (as  promised  by  the 
United  States  delegate  at  the  conference  above-mentioned),  namely, 
the  submission  of  each  such  international  draft  to  the  sovereign 
legislatures  of  our  fifty  States,  is  far  from  adequate  to  the  need. 
For  one  thing,  the  prospects  of  securing  uniform  adoption  by  all 
States  are  speculative  as  to  their  result  and  huge  in  the  efforts 
needed.     For  another  thing,  the  time  that  must  elapse  is  tediously 

1  Mr.  Charles  A.  Conant. 

2  July  21  (Report  of  the  Delegate,  p.  118;   cited  ante,  Chap.  X). 

545 


PART    III       UNIFICATION   OF   LAW  [Chap.  XIV 

excessive,  and  would  again  leave  us  for  a  generation  behind  the 
progress  meantime  made  by  the  rest  of  the  world.  The  most 
successful  and  imperative  of  the  tasks  of  the  American  National 
Conference  on  Uniform  State  Legislation,  the  Negotiable  Instru- 
ments Code,  has  required  twenty  years  to  secure  its  adoption  by 
only  three-fourths  of  the  State  legislatures.  And  what  must  be 
expected  for  international  codes  ?  For  they  would  find  even  more 
torpid  indifference  or  active  hostility  awaiting  them  in  the  turmoil 
of  the  various  local  legislative  smithies. 

What,  then,  is  to  be  the  destiny  of  the  United  States  in  this 
great  and  beneficent  movement?  Is  it  to  remain  apart,  isolated 
through  national  impotence? 

I  see  no  prospect,  ultimately,  of  adequate  power  to  co-operate 
until  there  has  arisen  a  general  activity  of  public  and  professional 
sentiment  which  will  support  State  grants  of  suitable  authority  to 
act.  But  pending  the  arrival  of  that  fortunate  day,  what  are  the 
federal  measures  which  could  and  should  be  advocated  as  the 
speediest  and  simplest  to  pave  the  way  ? 

(I  leave  aside  all  question  of  amending  the  federal  Constitution  ; 
first,  because  such  an  amendment  is  not  practically  thinkable  for  at 
least  a  generation  to  come ;  secondly,  because  such  an  amendment, 
to  affect  domestic  (i.e.,  intrastate)  law,  would  virtually  centralize 
in  the  federal  government  all  legislation  in  the  field  of  civil  law,  and 
would  thus  destroy  our  traditional  State  autonomy ;  and  I  am  too 
firm  a  believer  in  the  healthiness  of  local  self-government  to  be  will- 
ing to  sacrifice  it  for  any  international  advantages  whatsoever.) 

What  expedients,  then,  remain  ? 

Two,  at  least,  may  promise  something. 

(1)  In  the  first  place,  in  the  field  of  conflict  of  laws,  the  federal 
government's  power  to  make  treaties  should  be  employed.  How 
far  this  power  would  be  deemed  by  the  Supreme  Court  to  cover  that 
subject  is  of  course  open  as  yet  to  settlement.  But  this  need  not 
prevent  the  attempt  from  being  made.  Let  the  federal  govern- 
ment not  hold  back,  in  mere  caution.  Let  it  promptly,  actively, 
and  systematically  undertake  to  become  party  to  all  international 
conventions  dealing  with  topics  of  conflict  of  laws ;  and  let  these 
treaties  be  promulgated  as  "  the  law  of  the  land  ",  with  the  avowed 
purpose  of  superseding  all  rules  of  State  law  on  the  subject,  so  far  as 
they  affect  international  transactions.  Assuming  that  these 
treaties  would  have  this  effect,  this  body  of  rules  would  then  form  a 
standard,  to  which  in  time  we  may  hope  that  the  domestic  inter- 
state rules  would  be  gradually  induced  to  conform.     If  this  pro- 

546 


CHAP.    XIV]  A    WORLD    COMMON    LAW 

posal  be  deemed  sound,  the  duty  of  our  federal  government  would 
be  obvious,  to  take  a  more  active  and  encouraging  part  in 
such  conferences  than  its  traditions  have  hitherto  permitted  it 
to  do. 

(2)  In  the  second  place,  and  dealing  with  the  substantive  law 
itself  (outside  of  the  rules  for  conflict  of  laws),  let  Congress  empower 
the  individual  States  to  co-operate  directly  by  treaty  in  international 
unification.  All  that  is  needed,  by  way  of  removing  legal  obstacles, 
is  the  federal  Congress'  consent.  The  federal  Constitution,  for  a 
century  and  a  quarter,  has  read,  "  No  State  shall  without  the  con- 
sent of  Congress  .  .  .  enter  into  any  agreement  or  compact  with 
another  State  or  with  a  foreign  power."  l  Let  Congress,  then, 
consent  that  such  compacts  may  be  made.  The  several  States  may 
then  send  their  own  delegates  to  the  international  Conferences  on 
commercial  paper,  maritime  law,  and  the  like ;  and  these  delegates 
may  return  and  lay  before  their  State  legislatures  the  international 
drafts  for  ratification. 

Theoretically,  this  may  seem  to  offer  little  difference  from  the 
present  status  of  such  drafts.  Practically,  however,  it  ought  to 
offer  decided  improvement.  For  in  the  first  place,  the  enormous 
intellectual  and  moral  obstacle  of  the  intervening  third  party,  the 
federal  government,  is  removed  from  the  path.  The  necessity 
disappears  of  convincing  the  State  Department  and  of  employing 
its  machinery  and  perhaps  that  of  the  federal  Congress.  In  the 
second  place,  the  international  delegates  come  back  to  a  Legisla- 
ture of  their  own  State,  with  the  directness  and  convincing  enthusi- 
asm of  participants  in  the  Conference ;  and  they  find  awaiting 
them  a  local  confidence  and  prestige  which  is  far  greater  than  any 
federal  intermediary  under  the  present  system  could  possibly  have. 
The  prospects  of  their  successful  advocacy  of  the  international  draft 
would  be  as  great  as  that  of  the  delegates  of  other  nations  on  return- 
ing to  their  home  states  in  Europe  or  the  other  Americas. 

"  De  facto",  then,  even  if  not  "de  jure",  this  international 
participation  by  our  several  States  would  seem  likely  to  advance 
appreciably  the  prospects  of  effective  co-operation  by  this  country. 
And  the  likelihood  of  State  willingness  to  co-operate  is  not  remote. 
The  improvement  of  State  legislative  methods  is  already  a  topic  of 
the  time.2     The  proposed  type  of  delegate  is  already  familiar  to 

1  Art.  I,  §  10;  construed  in  Poole  v.  Fleeger,  11  Peters  185;  Rhode 
Island  v.  Massachusetts,  12  Peters  724 ;  Holmes  v.  Jennison,  14  'Peters 
571;  Virginia  v.  West  Virginia,  11  Wallace  39;  Virginia  v.  Tennessee, 
148  U.  S.  503 ;   St.  Louis  &  San  Francisco  R.  Co.  v.  James,  161  U.  S.  545. 

2  See  the  citations  in  note  4,  ante,  p.  542. 

547 


PART   III      UNIFICATION    OF   LAW  [Chap.  XIV 

most  Legislatures  in  their  State  Commissions  on  Uniform  Laws.1 
The  Atlantic  seaboard  States  would  be  almost  certain  to  employ 
the  proposed  expedient  at  the  earliest  opportunity ;  and  these 
models  would  before  long  be  followed  by  the  others. 

Let  us  therefore  not  give  up  the  hope  that  the  United  States,  by 
these  proposed  methods  or  by  others,  may  vigorously  pursue  its 
own  natural  duty  and  destiny  in  co-operating  with  other  nations 
for  the  unification  of  law  and  for  concert  in  the  administration  of 
justice.  Wherever  necessity  or  convenience  of  intercourse  demand 
such  action,  let  us  empower  ourselves  and  highly  resolve  to  do  our 
share.  Obstacles,  indeed,  there  are,  as  none  can  fail  to  see.  But 
history  shows  that  they  are  not  insurmountable.  And,  great  as 
they  may  be,  these  obstacles  cannot  discourage  us.  They  will 
but  stimulate  our  zeal ;  for  (to  quote  from  words  addressed  to  a 
former  Conference  having  this  lofty  object  at  heart 2),  the  proverb 
assures  us  that  "to  conquer  without  hazard  is  to  triumph  without 
glory." 

1  See  the  citations  in  note  1,  ante,  p.  544. 

2  Mr.  Asser,  president  of  the  International  Conference  on  Bills  of 
Exchange,  1910. 


548 


INDEX 


INDEX 


[References 

Abuse  of  Power.  See  Misuse  of 
Power. 

Administrative  Law,  abuse  of  power, 
see  Misuse  of  Power  ;  as  aspect 
of  private  law,  25,  49 ;  discretion- 
ary acts,  110 ;  French  pre-Revolu- 
tionary,  10 ;  special  use,  doctrine 
of,  99,  n.  1. 

Administrative  union,  204. 

Admiralty  courts,  397,  398. 

Adoption,  202. 

Adultery,  195. 

Affiliation,  22. 

Agricultural  law,  52. 

Agriculture,  international  union  of, 
454. 

"Arrondirung",  162. 

Assimilation  of  law,  international. 
See  Unification  of  Law. 

Assistance,  mutual,  59. 

Association,  a  social  function,  97 ; 
a  subject  of  right,  93 ;  effect  of, 
on  law,  56 ;  French  law  of,  97 ; 
juridical  nature  of,  57  ;  liberty  of, 
93,  97,  196 ;  movement  towards, 
92;  religious,  93,  144.  See  also 
Companies  ;  Corporations. 

Association  Francaise  de  Droit 
Maritime,  412. 

Aubry  and  Rau,  40,  41. 

Automobiles,  international  conven- 
tion on,  436. 

Bankruptcy,  380,  488. 

Baudry-Lacantinerie,  111,  132,   141. 

Bebel,  191. 

Bekker,  90,  94. 

Bills  of  exchange.  See  Nego- 
tiable Instruments. 

Birds,  international  protection  of, 
458. 

Birth  rate,  160. 

Bonjean,  225,  240-242. 

Bravard-Vevrieres,  333,  341. 

Bruyere,  226,  230,  234. 

Bufnoir,  41. 

Bull  fight,  83. 

Cambaceres,  8,  9,  17,  32. 
Case  law,  English,  257  ;  French,  13 ; 
idea  of  purpose,  in,  106,  145. 


are  to  pages.] 

Cassation,  Court  of,  17. 

"Cause",  in  contract,  105. 

Cauwes,  162,  213. 

Checks,  bank,  368,  376,  380.     See 
Negotiable  Instruments. 

Child.     See  Minors,  and  Illegiti- 
mate Child. 

Church,    separation   of   State   and, 
144;    and  marriage  in  Italy,  312. 

Civil  Code, 

Argentine:  71,  n.  4;  autonomy 
of  will,  88,  101,  105;  contracts 
for  benefit  of  third  parties,  120 ; 
entity  theory,  92 ;  juridical  acts, 
101,  105;  liability,  78,  125; 
liberty,  77 ;  property  rights,  71, 
131. 

Austrian  :  253 ;  influence  of, 
275 ;  influence  of  Roman  law  on, 
266. 

Belgian:  269. 
Chilean  :  254,  n.  1. 
French  :  acquisition  of  title,  272 ; 
arrangement,  293 ;  as  a  legal  sys- 
tem, 68 ;  capitalistic,  14,  295 ; 
"cause"  of  contract,  105,  107; 
commentators  of,  see  Commen- 
tators; "community",  204,  207, 
209 ;  contracts,  306 ;  contracts 
for  the  benefit  of  third  persons, 
120;  criticized,  290;  drafts,  8, 
196 ;  entity  theory,  92 ;  equality, 
13,  296 ;  estimate  of  during  1800  's, 
31-37 ;  exaggerated  respect  for, 
24  ;  family  law,  21 ;  foreigner,  13  ; 
gambling  debt,  108  ;  illegitimacy, 
151,  191,  304;  individual  under, 
18 ;  influence  of  Roman  law,  265  ; 
influence  on  international  law, 
260  ;  influence  on  instruction,  24 ; 
influence  outside  France,  251, 
269 ;  in  legal  evolution,  67 ;  in- 
surance, 299 ;  joint  ownership, 
293;  juridical  acts,  115;  labor 
contract,  295;  legacies,  109,  111; 
liability,  78,  125,  299;  liberty, 
77,  296 ;  marriage  contract,  194 ; 
marriage  formalities,  183  ;  married 
woman,  193,  197,  204,  207,  209, 
213,  217,  302;  misuse  of  power, 
299;    morals  of,  19;    novation  of 


551 


INDEX 


(References 

debt,  293;  "object"  of  contract, 
105,  107;  parental  authority,  1 55, 
201,  220,  239,  304;  partition  of 
estates,  157,  104  ;  and  proletariat, 
14;  property  rights,  18,  20,  71, 
78,  131,  305;  public  poli.-y,  298; 
revision  of,  286;  solidarity.  l'.»; 
study  of,  38;  subjective  liability, 
7S  ;  subjective  right,  (  8,  '  99  : 
successions,  20,  305;  Swiss  ("i\il 
Code,  compared,  290;  transfer  of 
property,  108;  wife's  earnings, 
213;  will  protected,  88,  101,  103, 
li)."». 

German:     acquisition    of    title, 
272;    administrative  union 
contracts,    306;     contracts,     in- 
equitable,   300;     criticized,    289; 
declaration  of  will.   103;    French 
( 'nil  Code  compared,  280  ;  general 
principles  of  law,  278  ;  "  hofrecht", 
\;V-'>;    influence,  277;    influence  of 
French  Civil  Code,  272;    influence 
of  Roman  law,   266;    interpreta- 
tion, 291 ;    married  woman,   198, 
204 ;     misuse      of      right,      142 ; 
parental   authority,    202;     penal- 
ties, 301 ;    "reserve"  under.  166  ; 
testamentary  foundations,  112. 
Bungarian:   276,  277. 
Italian-:     270,    310;     arrest   for 
debt,  317,  326;    citizenship,  317; 
contracts,     325;     divorce,     315; 
domicile,  317  ;  equality,  317  ;  ille- 
gitimacy,   321 ;      marriage,    312  ; 
married   woman,    198,   204,   318; 
minors,  318;    property,  323,  326, 
328 ;     successions,   324 ;     women, 
status  of,  318. 
Luxembourg,  270. 
Monaco,  270. 
Roumanian,  270. 
Serbian,  271. 
Spanish,  270. 

Swiss,  270,  277,  283  ;  administra- 
tive union,  204;  arrangement, 
294;  contracts,  306;  criticized, 
289 ;  illegitimacy,  304 ;  married 
woman,  199,  204,  217,  302 ;  mis- 
use of  right,  142,  284;  parental 
authority,  203,  303;  property, 
305 ;    successions,  305. 

Civil  law,  administrative  law  as, 
49 ;  agricultural  law  as,  52  ;  eco- 
nomic influences,  51 ;  industrial 
law  as,  52;  labor  legislation  as, 
54. 

Civil  Procedure,  Hague  Conferences, 
473,  491. 

Code,  Albertian,  270,  321,  323,  341. 

Code  of  Convention,  French,  8,  32. 

Code  of  Labor,  296. 

Code  of  Year  XII,  French,  32. 


are  to  pages.) 

Codification,  administrative  law,  10, 
255;  agent  of  unification,  207; 
of  commercial  law,  332  ;  economics 
of  1700's,  10;  English,  253,  256; 
German,  252,  255;  Indian,  259; 
influence  of  Napoleon,  Id;  in- 
fluence of  Napoleonic  Code,  251  ; 
influence  of  philosophy  of  1700's, 
10,  253,  257;  influence  on  evolu- 
tion of  law,  9.  17;  influence  on 
legal  science.  27,  30;  influence  on 
popular  mind,  3  * :  international, 
350;  [tali  a,  :;  18;  Latin,  252, 
25 1  :  ma  ri1  Ime  law,  408 ;  pre- 
Revolutionary,  7;  principles 
underlying,  see  Principles  under- 
lying Codification;  private  in- 
ternational law,  501,  527,  543; 
private  law.  11,  255;  Prussian, 
253;  public  law,  lo  :  Revolution-* 
ary,  7;  Slavic.  252,  255:  social 
influence,  23;  in  United  States, 
it,:;.  256. 

"Comite  Maritime  International", 
112,   113. 

( Jommercial  Code, 

French  :  332  ;  carriage,  359 ;  com- 
panies, acts   of    1867,    1893,  340, 
311  ;  influence  of,  351,  374;  mari- 
time law,  341,397,  408;  negotiable 
instruments,  373. 
German:   of  1861,  336,  338;   of 
1890,  carriage,  359 ;  corporations, 
172;   maritime  law  of,    390,  393, 
408 ;   negotiable  instruments,  see 
N  icotiable  Instruments. 
I  nternational  :  351 . 
.    Italian  :    341  ;    maritime  law  of, 
393,  408;  negotiable  instruments, 
374. 

Spanish  :  maritime  law  of,  393, 
408 ;  negotiable  instruments 
under,  374. 

Commercial  law,  French,  332,  340 ; 
German,  333  ;  international  con- 
ventions on,  353 ;  Italian,  332, 
334,  341,  349;  Latin-American, 
333  ;   unification  of,  347,  352,  528. 

Community.  See  Marriage  Prop- 
erty Systems. 

Community  of  acquests.  See  Mar- 
riage Property  Systems. 

Community  of  management.  See 
Administrative  Union. 

Companies,  law  of.  See  also  Cor- 
porations ;  Belgian,  341 ;  French, 
340;    Italian,  341. 

Comparative  law.  39,  350. 

Comte,  Auguste,  33,  34,  70,  76,  134. 

Comte,  Charles,  38. 

Condoreet,  4. 

Conferences,  international.  See 
Conventions,  International. 


552 


INDEX 

[References  are  to  pages.) 


Conflict  of  laws.  See  Interna- 
tional Law,  Private. 

Congress  of  Antwerp  (1885),  356, 
366,  368,  374,  375,  382,  412,  528. 

Congress  of  Brussels,  410,  411,  412, 
414,  528. 

Congresses,  international.  See  Con- 
ventions, International. 

Constitution,  Argentine,  71,  79,  131 ; 
French,  of  1791,  72. 

Consulado  del  Mar,  382,  406. 

Contracts,  affecting  successions, 
166 ;  benefit  of  third  parties,  120, 
293,299;  carriage,  359  ;  "cause", 
105;  changes  inlaw,  114;  collab- 
oration, 117;  collective,  55,  117, 
119,  295;  concurrence  of  wills, 
116;  conduct  equivalent  to,  117; 
equivalent  to  laws,  123  ;  gambling, 
108 ;  "gate",  117  ;  in  individualis- 
tic system,  77,  114;  intent  in,  60, 
107;  international,  48;  Italian 
Civil  Code,  325  ;  juridical  act,  77 ; 
liberty  of,  84,  115,  175,  306 ;  labor, 
53,  84,  119,  122,  295;  marriage, 
194 ;  married  woman's,  197 ; 
"object",  105;  public  policy, 
298 ;  public  service,  120 ;  Roman, 
115;  slot  machine,  117;  Swiss 
Civil  Code.  306. 

Contract,  quasi,  115. 

Conventions,  international,  46 ; 
African  slave  trade,  466 ;  agri- 
culture, 454 ;  Anglo-American 
position,  259,  491,  537,  544  ;  auto- 
mobiles, 436 ;  bankruptcy,  488  ; 
civil  procedure,  473,  491 ;  com- 
mercial law,  347,  353,  528 ;  copv- 
right,  46,  370,  439,  511,  529; 
customs  tariff,  445 ;  divorce,  478, 
483,  509;  fisheries  police,  464; 
guardianship,  478,  486;  Hague, 
see  Hague  Conferences;  in- 
fluence on  private  international 
law,  48;  insurance,  458;  labor 
protection,  55,  182,  440 ;  Latin 
American,  46,  490,  502,  504,  507 ; 
maritime  law,  401,  410,  412,  437; 
marriage,  478,  480,  509;  nego- 
tiable instruments,  335,  354,  362, 
376,  380  ;  operation,  512  ;  opium, 
464;  Pan-American,  511;  phyl- 
loxera, 458  ;  patents,  46,  370,  439, 
511;  postal,  425;  private  inter- 
national law,  501,  543;  railwavs, 
357,  370,  432;  Red  Cross,  464; 
sanitation,  459  ;  South  American 
police,  468 ;  submarine  cables, 
465  ;  successions,  479,  487  ;  sugar, 
47,  452  ;  telegraphic,  419  ;  trade- 
marks, 439,  511;  weights  and 
measures,  439  ;  white-slave  traffic, 
466 ;   wireless  telegraphy,  424. 


Copyright,  international,  46,  370, 
439,  511,  529. 

Corporation,  accountants,  173 ; 
creation,  171 ;  defects,  169 ;  ex- 
aminers, 172 ;  foreign,  354 ;  re- 
forms of,  171. 

Correction,  right  of,  154,  194. 

Correctional  institutions,  243. 

Courcelle-Seneuil,  38,  58,  134. 

Crime,  juvenile,  238. 

Criminal  Code,  French,  adultery, 
195 ;  equality,  15 ;  minors,  242, 
244. 

Damages,  expansion  of  law,  60. 

Decedents'  estates.  See  Succes- 
sions. 

Decisions,  judicial.     See  Case  Law. 

"Declaration  of  the  Rights  of  Man", 
basis  of  society,  6  ;  education,  86 ; 
influence  on  law,  67  ;  liberty,  72, 
77,  79 ;  natural  rights,  72 ;  prop- 
ertv  right,  78,  131,  133. 

Delinquent  children,  221,  238,  243. 

Democracy,  48,  61. 

Demogue,  90. 

Demolomhe,  40. 

"  Deutsches  Privatrecht,"  42. 

Disinheritance,  155,  166. 

Disposable  portion,  157,  164. 

Division  of  labor,  76. 

Divorce,  International  law  of,  46, 
478,  483,  509,  515 ;   Italy,  315. 

Domicile,  311,  317. 

Duel,  82. 

Duranton,  40. 

Durkeim,  143. 

Earnings,  child's,  153 ;  wife's,  205, 
207,  213. 

Economics  affect  private  law,  50. 

Education,  compulsory,  80,  85,  155, 
177. 

Egyptian  law,  348. 

Eldest  son,  157. 

Emancipation,  153,  219. 

Entity  theory,  91. 

Evolution  of  law,  influence  of  codi- 
fication, 17,  23  ;    periods,  67. 

Exclusion  of  community.  See  Mar- 
riage, Property  Systems. 

Exegesis.     See  Interpretation. 

Family,  changes,  149,  267  ;  concen- 
tration, 155;  influence  of  indus- 
trial system,  174 ;  influence  of 
land  partition,  156 ;  influence  of 
marriage  formalism,  183  ;  influence 
of  the  stock  company,  169  ;  mar- 
riage, 22  ;  Old  Regime,  152 ;  work- 
shop, 179. 

"Family  land",  162. 


553 


INDEX 


[References 

Family  law,  French  Civil  Code,  18, 
21 ;  changes,  149;  democracy,  61 ; 
Hague  Conferences,  478  ;  parental 
authority,  see  Parental  Author- 
ity ;  Serbian,  276. 

Feminist  movement,  62,  303,  318. 

Foreigner,  under  French  Civil  Code, 
13. 

Fourier,  33,  35. 

Freights,  railway.  See  Transporta- 
tion and  Conventions,  Inter- 
national. 

Fremery,  332,  333. 

Gabba,  315,  318. 

Game,  protection  of,  458. 

Gaudemet,  283. 

General  average,  differences  in  law, 
385 ;  origin,  383 ;  unification  of 
law,  382,  386,  392;  York  rules, 
388,  410;  York-Antwerp  rules, 
390,  410/540. 

General  Principles  of  Law,  26,  278. 

General  theory  of  law,  43. 

Geny,  45,  90. 

Gide,  156,  168,  320. 

Gierke,  90,  94,  292. 

Girardin,  E.  de,  319. 

Goldschmidt,  334,  365. 

Goncourt  brothers'  will,  111,  112, 
113,  ns.  1,  2. 

Guardianship,  Hague  Conventions, 
46,  478,  486,  515 ;  voluntary,  229. 

Hague  Conferences,  335, 376,  380, 
470,  497,  506,  515,  527,  see  also 
Conventions,  International  ; 
Anglo-American  position  in,  491 ; 
compared  with  Latin-American, 
507 ;   present  tendencies,  516. 

Hanseatic  League,  407. 

Hauriou,  90. 

Hellenic  law,  348. 

History  of  law,  Germany,  42 ;  study 
of,  39. 

"Hofrecht",  162. 

Homestead,  162. 

Huber,  Eugen,  305. 

Hue,  Theophile,  324,  330. 

Husband  and  wife,  democracy,  62 ; 
husband's  authority,  194. 

Illegitimate  Child,  condition,  149, 
191;  democracy,  63;  French 
Civil  Code,  151,  191,  304;  Italian 
Civil  Code,  318,  321 ;  Swiss  Civil 
Code,  304. 

Incapacity,  married  woman's,  193. 

Increment  value  duty,  137. 

Individual,  the,  conception  of,  in 
law,  5,  72;  and  property  law,  18, 
1 33 ;  status  of  in  international 
law,  310. 


are  to  pages.] 

Individualism,  5,  71 ;  contracts,  114 
"Declaration  of  Rights  of  Man" 
68 ;  essentials,  76 ;  family  law 
21;  French  Civil  Code,  68,  274 
legal  philosophy  of  1700  s  and 
1800  s,  29  ;  property  law,  19,  130 
rights  "in  rem",  110;  Roman 
law,  71,  267;  socialism,  56,  58 
social  philosophers,  33 ;  unifica' 
tion  of  law,  11. 

Industrial  accidents,  126,  193,  451. 

Industrial  system,  influence  on 
family,  174. 

Inheritance.     See  Successions. 

Institute  of  International  law,  355, 
367,  369,  374,  465,  476,  489,  498. 

Insurance,  compulsory,  80,  85; 
French  Civil  Code,  299;  inter- 
national congress  on,  458  ;  Italian 
Civil  Code,  329;  maritime,  386, 
403,  405 ;  workingmen's,  126,  193, 
451. 

Intent  as  test  of  legality,  60,  95. 

Interdiction,  487. 

Interests,  as  opposed  to  laws,  34. 

International  Association  for  Re- 
form and  Codification  of  Inter- 
national Law,  355,  366,  374,  390. 

International  Association  of  Rail- 
way Congresses,  436. 

International  Association  of  the 
Marine,  438. 

International  bureaus,  47  ;  African 
slave  trade,  466 ;  copyrights,  444 ; 
customs  tariff,  445  ;  labor  protec- 
tion, 447  ;  maritime,  438 ;  patents, 
440;  postal,  427,  429;  for  pub- 
lication of  treaties,  445  ;  railways, 
360,  432;  sanitation,  460,  462; 
sugar,  47,  452 ;  telegraph,  421 ; 
trade-marks,  440 ;  weights  and 
measures,  439  ;  white-slave  traffic, 
468 ;    wireless  telegraphy,  424. 

International  Expositions,  352,  354, 
536. 

International  Institute  of  Agricul- 
ture, 455. 

International  Law  Association,  375, 
380,  394,  410,  412,  476,  478,  492, 
494,  496,  498. 

International  law,  private ;  bank- 
ruptcy, 488;  bases  of,  471,  492; 
civil  procedure,  473,  491 ;  codi- 
fication of,  501,  527,  543;  con- 
ventions on,  see  Conventions, 
International;  divorce,  478 
483,  509,  515;  family  law,  478 
guardianship,  476,  486,  515 
Hague  Conferences  on,  see 
Hagtte  Conferences;  interna- 
tional study  of,  356;  immovables, 
495  ;  influence  of  political  changes 
on,  47;   Italian  Civil  Code,  310; 


554 


INDEX 

[References  are  to  pages.] 


Latin-American  conferences,  46, 
502,  504,  527 ;  marriage,  478,  480, 
509  ;  negotiable  instruments,  335, 
354,  362,  376,  380;  personal 
status,  310,  493,  504,  508,  517; 
successions,  479,  487 ;  two  theo- 
ries of,  503. 

International  law,  public,  American, 
261 ;  influence  of  French  Civil 
Code  on,  260 ;  influence  of  polit- 
ical changes,  46 ;    purpose,  47. 

International  Maritime  Committee, 
438. 

International  Penitentiary  Commis- 
sion, 459. 

Interpretation,  judicial,   18,  25,  26. 

Interpretation  of  French  Civil  Code, 
27  ;  dogmatic,  40  ;  expository,  25, 
40 ;  respect  for  text,  24 ;  syn- 
thetic, 26,  40 ;   text  writers,  27. 

Jellinek,  69,  90,  94. 

Jhering,  42,  89,  106,  107,  298,  539. 

Josserand,  142. 

Judge,  functions,  27,  282,  283,  301 ; 
interpretative  powers,  18,  25,  282, 
283. 

Judicial  law.     See  Case  Law. 

Juridical  act,  contract,  77  ;  defined, 
88,  101 ;   purpose,  95,  104. 

Jurisprudence,  general.  See  Phi- 
losophy of  Law. 


Labor,  agricultural,  180 ;  arbitra- 
tion, 53 ;  children,  175 ;  code, 
296;  commercial,  180;  compul- 
sory, 80,  85 ;  contract,  53,  55,  84 
117, 119,  122,  295 ;  hours,  83,  175 
international  protection,  445 
regulation,  176;   women,  175. 

Labor  legislation,  176;  civil  law, 
54 ;  expansion,  55 ;  influence  of 
economic  changes  on,  52 ;  inter- 
national, 55,  182,  445  ;  solidarity, 
53. 

Laboulaye,  38,  41. 

Lambert,  45. 

Land,  obligation  to  cultivate,  135 ; 
partition,  156;  unearned  incre- 
ment, 136. 

Latin  American  Conventions  on  In- 
ternational Law,  46,  502,  504, 
527 ;  compared  with  the  Hague, 
507. 

Laurent,  26,  40. 

Law,  equality,  14 ;  evolutionary 
periods,  67 ;  individualistic  sys- 
tem, 68,  76;  judicial,  see  Case 
Law;  readjustment,  see  Read- 
justment of  Law  ;  social  sys- 
tem, 72 ;  spontaneous  develop- 
ment, 10. 

Le  Chepeher  law,  93. 

555 


Legacy,  French  Civil  Code,  111 ;  idea 
of  purpose,  109,  112. 

Legal  instruction,  French,  44. 

Legal  literature,  "  Deutsches  Privat- 
recht",  42 ;  German,  of  1800  s  ,  41 ; 
"  Pandektenrecht",  42. 

Legal  science,  German,  38;  Italian 
criminology,  43;  method  of  ob- 
servation in,  38;  political 
economy,  44 ;  reform  of  in  1800  s, 
37-41 ;    renascence,  41-45. 

"Legal  share."     See  "Reserve." 

Legislation,  English,  257;  group, 
56;  readjustment,  see  Readjust- 
ment of  Law  ;  source  of  law,  5,  9, 
12. 

"Legitime."     See  "Reserve." 

Le  Play,  37,  58,  157,  158,  161,  166, 
175. 

Leroy-Beaulieu,  168. 

Levi,  Leone,  351,  528,  53 0. 

Liability,  civil,  French  Civil  Code, 
see  Civil  Code,  French  ;  inani- 
mate objects,  128 ;  injury  in  pub- 
lic service,  128;  expansion,  60; 
objective,  59,  61,  78,  125;  sub- 
jective, 78,  124. 

Liability,  criminal,  60. 

Liberty,  of  association,  92,  97,  196 ; 
changes  in  conception,  79 ;  of  con- 
tract, 84,  115,  175;  defined,  87; 
individual,  6,  79;  individualistic 
system,  77,  79 ;    marriage  agree- 

.  ment,  206 ;  married  woman,  200 ; 
social  function,  73  ;  solidarity,  60, 
80;  testamentary,  157,  161,  164, 
167. 

Lyon-Caen,  44,  340. 


"Majorat",  157. 

Mancini,  492,  498,  499. 

Maritime  law,  assimilation,  349 ; 
changes,  401 ;  civil  law,  inter- 
penetration,  399 ;  early,  382,  397, 
406;  French  Com.  C,  341,  397, 
408 ;  general  average,  see 
General  Average  ;  individu- 
ality, 396;  Ordinance  of  1681, 
French  Marine,  397,  407 ;  tend- 
encies, 404;  unification  of,  396, 
406,  410,  437. 

Marriage,  criticized,  190  ;  formalism, 
183 ;  foundation  of  family,  22, 
151 ;  international  law,  46,  478, 
480,509;  obligations,  217  ;  secu- 
larization of  in  Italy,  312. 

Marriage  property  systems,  admin- 
istrative union,  204 ;  community, 
204,  215 ;  community  limited  to 
acquests,  206,  215;  exclusion  of 
community,  204 ;  Italian,  326 ; 
marriage-portion,  159,  204;  "re- 
serve", 207,  215;   separation,  204. 


INDEX 

[References  are  to  pages] 


Married  woman,  changes  in  condi- 
tion,    149,     196;      earnings,     see 
Earnings;    incapacity,  193,  197 
industry,  175 ;     legal  status,  191 
193;    letters,  200;    liberty,   200 
name,     199 ;      nationality,     199 
parental  authority,  200  ;  property 
see    Marriage     Property    Sys- 
tems;   savings,  209,  214;    Swiss 
Civil  Code,  302. 

Masse  and  Verge,  40,  333,  341. 

Menger,  205,  285,  289,  290,  297,  298. 

Metayer,  159,  327. 

Method,  legal,  comparative,  39, 
350;  dogmatic,  40;  exegetical, 
40;  French,  280-  German,  42, 
280 ;  historical,  40 ;  reforms,  39 ; 
social,  41 ;    synthetical,  40. 

Metric  Union,  438. 

Michoud,  09,  n.  1,  89,  90,  94. 

Mill,  John  Stuart,  35,  318. 

Millerand,  84,  120. 

Miners,  83,  84. 

Minors  (see  also  Illegitimate 
Child),  abandoned,  221 ;  criminal 
law,  242;  delinquent,  221,  238; 
earnings,  153;  labor,  155,  177; 
loan,  154;  neglected,  155,  221, 
224;    testamentary  power,  154. 

Misuse  of  powers,  59,  140 ;  adminis- 
trative law,  109,  143 ;  French 
Civil  Code,  299;  German  Civil 
Code,  142,  203,  279  ;  Roman  law, 
194 ;  Swiss  Civil  Code,  142,  284. 

Models,  industrial.     See  Patents. 

Montesquieu,  4,  348. 

Montevideo,  Convention  of,  46,  490, 
504. 

Mosaic  law,  348. 

Mortmain,  in  French  law  of  asso- 
ciations, 99. 

Mutual  aid  societies,  93,  97. 

Napoleon  I,  hostility  to  women, 
196;  influence  on  French  codifi- 
cation, 10,  13,  32 ;  respect  for  Civil 
Code,  24. 

Napoleonic  Code.  See  Civil  Code, 
French. 

Nationality,  199,  311. 

Natural  Law,  4;  French  codifica- 
tion, 27  ;  historical  method,  42. 

Navigation.     See  Maritime  Law. 

Neglected  children.    See  Minors. 

Negotiable  Instruments,  Bremen 
rules,  366;  French  Com.  C,  373; 
German  Law,  333,  335,  338,  341, 
352,  363,  372,  376;  Italian,  374; 
Spanish,  374  ;  theories,  373  ;  types 
of  laws,  372:  uniform  law,  335, 
354,  362,  376,  380. 

New  York  Life  Insurance  Co.  vs. 
Castro.  512. 


Nicbuhr,  38. 

"Nobleman's  custody",  220. 

Nordan,  Max,  190. 

Objective  Law,  71,  75. 
Obligations,  Swiss  Federal  Code  of, 

277,  306. 
Occupations,    dangerous,    83,    178, 

180. 
Oleron,  Laws  of,  407. 
Opium   Commission,    International, 

463. 
Ordinance,  French  Maine,  of  1861, 

397,  407. 

Pan-American  Congresses,  511. 

Pan-American  Sanitary  Union,  462. 

"Pandektenrecht",  42,  266,  289. 

Pardessus,  333,  341,  401,  408. 

Parentage,  22. 

Parental  authority,  dispossession  of, 
232 ;  democracy,  63 ;  forfeiture, 
226 ;  inequality  of  mother's  and 
father's,  201 ;  protection  against, 
225;  punishment,  239;  purposes, 
149,  155,  219;  restoration,  231; 
Roman  influence,  153,  219. 

Parieu,  364,  371. 

Partition  of  land,  156,  158. 

Patents,  international  unions,  46, 
370,  439,  511,  529. 

"  Peculae",  153. 

Permanent  International  Associa- 
tion of  Navigation  Congresses, 
438. 

Person,  juridical,  bequest  to,  111; 
French  law  of  associations,  97 ; 
legality  of  acts  of,  95 ;  theories,  91. 

Personal  status  in  international  law, 
310,  492,  504,  508,  517. 

Philosophy,  pre-Revolutionary,  3 ; 
natural  law,  4  ;    social,  5. 

Philosophy  of  law,  after  French 
codification,  27  :  Catholic  authors, 
28 ;    German,  42  ;   of  1800  s,  29. 

Philosophy,  social,  of  1700  s,  27,  29. 

Phosphorus,  white,  prohibition  of, 
447. 

Phylloxera,  International  union 
against,  458. 

Pisanelh,  308,  311,  319. 

Planiol,  105,  110,  115,  142. 

"Plebeian's  custody",  220. 

Political  changes  influence  inter- 
national law,  45. 

Political  economv,  influence  on  law, 
4. 

Portalis,  12,  17,  18. 

Positive  Law,  source  of,  5. 

Postal  service,  not  a  contract,  118; 
international  union,  46,  370,  425, 
531,  542;  periodicals,  subscrip- 
tions, 428. 


556 


INDEX 


[References 

Pothier,  195,  197,  397. 

Principles  underlying  codification, 
12 ;  equality  of  law,  13 ;  legisla- 
tion, sole  source  of  law,  12 ;  logic, 
16;    penalties,  16;    precision,   16. 

Private  Law,  administrative  law, 
49;  bases,  6;  codification,  11; 
distinguished  from  public,  6; 
German  study  of,  42 ;  Italian, 
329;  philosophy  of  1700  s,  6;  po- 
litical economy,  6 ;  reform  of 
science  of,  37. 

Prison  reform,  international,  459. 

Procedure,  civil,  Hague  Convention, 
46. 

Promissory  notes,  376,  378.  See 
Negotiable  Instruments. 

Property  law,  bases  of,  18,  20,  130 ; 
French  Civil  Code,  18 ;  idea  of 
purpose,  138 ;  Italian  Civil  Code, 
323. 

Property,  misuse  of,  138,  140. 

Property,    movable,   51. 

Property,  real,  52,  56,  130 ;  French 
Civil  Code,  14 ;  international  law, 
495. 

Property  rights,  basis  of  law,  5 ; 
basis  of  society,  6 ;  creation,  102  ; 
individualistic  system,  78 ;  French 
Civil  Code,  20,  293,  305 ;  limita- 
tions, 138 ;  misuse,  140  ;  obliga- 
tions, 133,  142;  private,  6,  131, 
267 ;  French  Revolution,  7  ;  social 
function,  74,  129,  138 ;  Swiss  Civil 
Code,  305. 

Proudhon,  33,  35. 

Public  Law,  bases,  6,  7 ;  distin- 
guished from  private,  6 ;  political 
changes,  48;  French  Revolution, 
7. 

Public  policy,  61,  298. 

Public  Service,  118,  120. 

Publicity,  corporate,  172. 

Purpose  in  law,  95,  106;  adminis- 
trative law,  99,  143 ;  French  con- 
tract, 107 ;  French  associations, 
97;    property,  138. 

Races,  effect  of,  on  legal  uniformity, 
520. 

Railways,  international  regulation 
of,  357,  370,  432,  531,  541. 

Readjustment  of  law,  Cambaceres 
9,   17;    French  Civil  Code,  286 
Italy,   308;     maritime  law,   401 
precision  a  hindrance,  16 ;  philoso- 
phers of  1700  s,  6;  Revolution,  9. 

Real  property.  See  Property,  Real. 

Reason,  in  1700  s,  4. 

Red  Cross,  464. 

Renault,  44,  340. 

"Reserve",  marriage  systems,  207, 
215;   successions,  155,  161,  166. 


are  to  pages.] 

Rest,  day  of,  85,  180. 

Reversion  duty,  137. 

Rhodesian  maritime  customs,  382. 

Rights,  civil,  in  Italy,  312. 

Right  "  in  rem  ",  110. 

Rights,  legal,  individualism,  71,  89; 
social  function,  73 ;  subjective, 
69. 

Rights,  natural,  71. 

Religious  orders,  93,  97. 

Ripert,  142,  143. 

Roguin,  489,  493. 

Roman  law,  acquisition  of  title,  272 ; 
"actio  Pauliana  ",  194;  agent  of 
unification,  265 ;  assimilation, 
348;  contract,  115;  feudalism, 
267 ;  influence  on  commercial 
law,  335,  341 ;  influence  on  modern 
codes,  265 ;  maritime,  397  ;  mis- 
use of  right,  194 ;   study  of,  42. 

Rossi,  Pellegrino,  36,  310,  323,  329. 

Rousseau,  34. 

Rule  of  law,  the,  73. 

Saint-Simon,  33,  34. 

Saleilles,  45,  90,  94,  142,  203,  207, 
215,  292,  300,  340. 

Sanitation,  international  union,  46, 
459. 

Savigny,  38,  42,  47,  91,  331,  335, 
489. 

Savings,  banks,  209 ;  married 
woman,  209,  214. 

"  Schliisselgewalt ",  203. 

Separation  of  estates,  204. 

Separation  of  husband  and  wife, 
Hague  convention,  46. 

Separation  of  Powers,  6. 

Simon,  Jules,  177,  225. 

Slot-machine,  117. 

Smith,  Adam,  310,  327. 

Social  economy,  58. 

Social  function,  73 ;  explained,  74 ; 
French  associations,  97 ;  legal 
protection,  96;  juridical  state  of 
facts,  102;   property,  129,  138. 

Socialism,  influence  on  law,  56,  297. 

Society,  adjustment  of  law,  9 ; 
natural  order  of,  4 ;   new  bases,  6. 

Solidarity,  family  law,  21 ;  influence 
on  law,  58,  61,  298,  309;  labor 
contracts,  53 ;  constituents  of,  75. 

Sources,  legal,  custom,  11;  legisla- 
tion, 12;    Roman  law,  11. 

Sovereignty  of  people,  6. 

Sports,  dangerous,  82. 

State  of  facts,  juridical,  100 ;  hav- 
ing social  function,  102,  111; 
outside  contracts,  110,  115,  116. 

State  relief  of  children,  221. 

Stock,  issue  of,  171. 

Study  of  law.  See  Legal  Instruc- 
tion. 


557 


IXDEX 


[References 

Subject  of  right,  defined,  88; 
French  associations,  98;  groups, 
(.i:> ;   irreconcilable  wit  li  faol  3,  89. 

Subjective  Right,  68;  "Declaration 
of  Rights  or  Man",  68;  denial  of, 
72;  explained,  69,  89;  French 
Civil  Code,  68,  299;  property, 
129;    theory  refuted,  95. 

Submarine  cables,  465. 

Successions,  conservation  of  estates, 
157;  contracts  affecting,  166; 
daughters,  157;  distribution  "in- 
ter vivos"  in,  164;  French  Civil 
Code,  20,  305;  influence  on  birth 
rate,  160 :  internal ional  law,  31 1 , 
479,  4s7  ;  Italian, 324;  partition  of 
Land,  L56;  "reserve",  155,  161, 
166;  systems,  157 ;  Swiss  Civil 
Co  Le,  305;    wills,  108,  111. 

Suicide,  81. 

Sugar  Union,  47,  452. 

Sum,  353. 

Syndicates.     See  Trade  Uni" 

Taine,  58,  151,  152,  156. 

Tarde,  237. 

Telegraphic  union,  46,  419,  531. 

Test  oud,  2:}."). 

Thaller,  171,  172,  173,  340. 

Thol,  334. 

Toequeville,  36,  62. 

Trade-marks,    international   unions, 

46,  370,  439,  511,  529. 
Trade.  Unions,   collective  contracts 

of,  r>o,  122;    influence  on  law,  56; 

legality,  93,  97 ;    political  powers, 

57. 
Transfer  of  liability,  292. 
Transportation,     French    Com.    C. 

359;    international  freight  rates, 

46,  357,  359,  370. 
Troplong,  40. 
Trust  entails,  157,  161. 

Undeveloped  Land  Duty,  137. 
Unearned  increment,  136. 


are  to  pages. ) 

Unification  of  law.  (Sec  also  Con- 
\  en  noNS,  International)  ;  com- 
mercial law,  :;17.  352  et  seq.,  528; 
ethnical  Influences,  520;  inter- 
national bodies  of  official  expi  rts, 
:;17,  lit;,  525,  536;   maritime  law, 

396;  method,  5.J7,  539;  modern 
codification,  268;  need,  537; 
proper  subjects  for,  525;  role  of 
United  States  in,  537,  544  ;  Roman 
law,  265. 

I  'nilaleral  acl  S,   111,  118. 

Unions,  international,  416.  See 
Conventions,   I  international. 

Urban  immigration,  153. 

Verge,  LO. 
Vidari,  14,341. 
Vincens,  333,  341. 
Viollet.   Paul.   194,  196. 
Vivante,  44,  342. 

Waldeck-Rousseatj  law,  97. 
"Wechselklausel",  374,  378. 
"  Wellspacher  ",  277. 

Will,  autonomous,  basis  of  liberty, 
77.  79,  87;  basis  of  property  law, 
20,  102,  131;  defined,  88,  89; 
family  law,  23;  productive  of 
legal  result,  102,  105 ;  subject  of 
right,  88,  101. 

Will,  declaration  of,  productive  of 
legal  result,  102,  103,  n.  3,  118; 
unilateral,  293. 

Wills.     See  Successions. 

V7isby,  Laws  of,  382. 

Workmen,  hours  of  labor,  83;  in- 
juries to,  126  ;    protection,  83. 

York  Rules,  388,  410. 
York-Antwerj>  Rules,  390,  410,  540. 

Zachariae,  39,  40,  41. 
"Zadruga",  276. 
Zitelmann,  90,  94. 


558 


Date  Due 

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AA   ( 

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